Below we’ll be getting into how and why mediation and other forms of alternative dispute resolution are excellent ways of getting through conflict and staying out of the courtroom.
As the cost of litigation has increased, and the delays to even get into the courtroom have become longer, mediating disputes has become more popular. Unbeknownst to most, over 85% of cases are resolved in mediation. Mediation is part of a larger umbrella of the law called alternative dispute resolution or ADR. ADR includes the informal negotiations, the semi-formal mediation, and the much more formal arbitration. Mediation is a process in which the two sides come together with a neutral professional whose sole aim is to help the parties resolve the dispute.
Quick Intro to the Basics
The Power of Perspective and Context
It is common for those entrenched in conflict to dig in their heels. The hard part is seeing an issue from the perspective of another. It can be liberating, stress relieving, and bring in a whole new level of understanding when we can catch ourselves thinking “well if I was in this situation I *might* have done the same” or in the least “not what I would have done but I can see what’s going on here now”. Being able to understand someone’s context in a given situation can help reduce anger, make room for better positioning in an argument or discussion, and ultimately get us closer to getting what we really want, resolution.
Distinguishing Between Different Arguments and Addressing Them Separately
Although lawyers are trained to do this in law school, most of us tend to mush all our arguments and issues with others into one position. By taking a step back and taking a closer look it become harder to ignore that nagging voice telling us “hold on a sec it’s starting to look like there are three things going on here” not just one. The moment this happens it becomes a lot easier to determine which of these issues are important, which are secondary leaving room for compromise, and which ones are hitching a ride altogether.
What’s the big picture?
We all see things from our own vantage point. It takes a great deal of discipline to be neutral. Getting a lawyer involved to help you through ADR instead of rushing into litigation can refreshing, far less costly, and somehow leave you feeling better about the whole situation despite not particularly caring for the other party.
Curiosity and Respect
Sometimes one is left feeling anything but empathetic in a given conflict with another with little motivation to open oneself up. If the other party feels the same way you’ve got yourself a battle royale. If the party you are in conflict with strikes you as stubborn and unreasonable it may help unravel *why* by exercising your curiosity. Carefully try to understand how they’ve arrived at their conclusions. Sometimes the reason they are digging in their heels isn’t what you think it is. Sometimes it’s not what they thought it was either. Curiosity can lead to the establishment of greater respect for another’s position. People are often more inclined to give when they receive. If you can’t even understand where someone is coming from you’re not likely to extend them any courtesies. Asking sincere questions is a great start.
What Is and Isn’t Taught in Law School
Over the last decade you may have heard of “holistic law”. It isn’t a practice, nor is it taught in law school, but it has nonetheless come to mean different things to different people as more of a method, process, or approach to law. Some of the core principles many agree on are listed below:
- Encourage reconciliation
- Contribute to peace building
- Enjoy the practice of law
- Listen intentionally
- Acknowledge opportunity in conflict
- Respect each individual
Extracting the Legal Issues from “life mess”
The mediator is a neutral professional. The parties are free to agree upon anyone they want to mediate their dispute. Typically, the mediator has no pre-existing relationship with any of the parties involved in the case and is only focused on resolving the dispute. In most civil cases, the mediator is a licensed attorney, with expertise and training in the art of mediation. Sometimes the issue is so complex or nuanced that they need a special type of expert, i.e., an accountant, a realtor, a doctor, or a construction expert. In some counties, the mediator could be a judge. In some cases, the judge may compel the parties to participate in mediation, during which the judge will act as the mediator.
Lawyers as Peacemakers
Because the mediator can be anyone the parties agree on, this lends itself to flexibility and ease. The most important part of being a mediator is being neutral – the mediator has no emotional involvement with the controversy and can wade through the emotions expeditiously to help the parties come up with a resolution for their dispute. The mediators job is to identify what issues are standing in the way of settling the issue and helping to develop strategies for overcoming those obstacles. The mediator is not there to render a decision or compel settlement. His/her job is to listen to the parties and help them identify the real obstacles standing in the way of settling the issue(s).
Generally, neither party is compelled to participate in mediation. It should be noted however, that the parties might feel some coercion to participate or suffer paying attorney’s fees later in the litigation process. Mediations are entered into with far less motion practice, evidence gathering, securing attendance of witnesses, etc. than a trial, which makes the process far less expensive. Since the cost of litigation and who will pay for it are major impediments to settlement later in the process, early mediation is often the best time to settle the case.
Once the mediator is selected the mediation can begin. Mediation is inherently informal, however it is more formal than a typical negotiation. The mediator controls the process, however he or she may reach out to the parties and/or their attorneys to get an idea of what type of procedure they are interested in. In many cases, the mediator will reach out to the parties and/or their attorneys and ask for a formal writing of the parties’ stances and the issues that particular side sees. Then the parties are brought together at a mutually agreed upon location – this may be in the mediators office or another location that provides neither side with an advantage.
The mediator may allow the parties to present what we all know as opening statements. From there, the mediator can hold “caucuses” wherein the mediator will take one side or even one party into a separate session and speak with them one on one. These lend themselves to honest dialogue, wherein the mediator will ask the hard questions that the party doesn’t want to acknowledge or answer, but are integral to the process. The mediator’s job is to cut to the heart of the matter and force the parties to see the pros and cons of their respective case. In these caucuses, the parties are free to be honest and present a realistic solution that the adversarial process of litigation prevents the attorney from offering.
The mediation session can last a few hours or can take a few days. The mediator and the schedules of the parties will dictate this. However, it is much less involved than a trial or arbitration and can resolve a dispute expeditiously. Mediation is also completed with little fanfare. The posturing attorneys do during trial is removed, which often allows for more genuine settlement negotiations to take place.
Essentially, the mediator will listen to both sides, cut through the emotions involved, and aid the parties to get to a “win-win” resolution. The meditator does not make the final decision; the parties do – which can be incredibly beneficial for the parties. The mediator is not typically offering recommendations; instead, he/she is acting as a liaison to allow the parties to make a decision based upon a realistic analysis of the parties’ case. The mediator will listen to the facts, not the emotion, and guide the parties to settlement.
With mediation, all the parties arrive at the results – nothing happens until all the parties agree, and sign an agreement to resolve the dispute. The result is not dictated to the parties by a judge or arbitrator, and all parties leave the process with their pride intact. The amazing thing about mediation is that the parties’ walk in thinking one thing is the issue and walk away with a resolution which brings clarity to both sides of the issue. This makes “win-win” situations possible. Mediators are trained to consider all the options, not just one issue. One party may walk in thinking they want money but instead are really looking for is an apology. It doesn’t have to be complicated. This is what makes mediation so appealing.
What else is appealing? Solutions aren’t fixed in mediation. Litigation and even arbitration usually ends with a monetary decision – someone gets paid and someone pays. This can leave one side, if not both sides, disappointed. Money cannot fix everything. Mediation however, lends itself to much more flexible results. The parties involved in the dispute are often the best ones to resolve it – not always a judge and/or jury.
In business settings, this can mean contracts continuing, paying off damages in future performance, securing debts with assets, agreements to modify behavior to allow companies to continue to work together, etc. In marital dissolutions, lump sum settlements can be arrived at to finance a business or fund education making both parties self sufficient and eliminating claims for spousal support, cooperative parenting time schedules can be agreed upon that really work for the parties and children, as opposed to court-mandated schedules which work moderately well for the masses. Even creditors and debtors can explore stipulated judgments, notes and security, and payment plans, which would not be available in the courtroom.
Further, mediation can mend what is broken, instead of the parties having to start from scratch. If the parties go to trial this usually means that the relationship is completely dissolved. Think about it like this – if the municipality has an issue with a contractor on a government project, and the matter goes to trial, the contract between the municipality and the contractor goes away. However, if the parties are able to come to an agreement in mediation, typically, the contract is able to continue. The municipality doesn’t have to go back to the drawing board and redo the bid process. Projects get completed in a timely matter and relationships can be mended.
Once a resolution is arrived at, either the parties’ lawyers or the mediator draw up the agreement, memorializing the resolution. The parties then sign the document and it’s over. If the resolution is complex or minor details remain unresolved, an agreement may be signed at the mediation, with the understanding that the parties’ lawyers will prepare a more formalized agreement at a later date. Typically, the outcome of the meditation is confidential and the only thing the public knows is that the case was settled and dismissed. The major exception is some government disputes, wherein the resolution must be made public.
However, mediation isn’t always successful. The parties must agree or no resolution will occur. If the mediation is unsuccessful, then the case marches forward – motion practice, gathering witnesses, taking depositions, etc. This is all time consuming and financially burdensome. In civil cases where the amount in question is less than $50,000, then the case must proceed to arbitration.
Mediation is not only faster, but is also substantially less expensive than if the case goes to trial. If the parties hire a mediator, then they incur the costs. If a judge is acting as the mediator, then the only costs incurred by the parties’ are attorney’s fees. However, if a private mediator is hired, then he or she is, typically, paid by the hour. The mediator may request that each side pay a deposit equal to half of the expected fee, but a different payment schedule can be negotiated later. Mediators may offer reduced fees or volunteer their services if the parties cannot pay the mediators fees.
Mediations are completely confidential. This lends itself to resolution in a number of ways. First, attorneys are charged with zealously advocating for their clients. This can make them wary of offering a “reasonable” settlement because they are afraid of looking weak. The mediation is a “safe place” where the mediator can guide the conversation and control the communication between the parties. The mediator can guide the conversations through the unproductive parts and only realistic proposals get communicated to the opposing side.
Second, it is in the parties’ best interest to enter into mediation with the intent of settling the matter and being open to any and all possible resolutions. Because mediations are completely confidential, the parties’ can engage in the honest and frank discussions, without the fear of retribution in later litigation. In short, if you make an offer or concession in mediation, it cannot be used against you at trial. Remember, the parties know that the mediation might not be successful, but it is in their best interest to settle the case efficiently. This can only happen if the parties are honest and open.
All of this begs the question of why a mediator is necessary in the first place. The first and most obvious reason behind going to mediation is cost. Litigation can be incredibly expensive. Mediation often happens very early in the process, which means that discovery and other costly investigations aren’t required. Because mediation happens early in the process, both sides save money.
The second reason to go to mediation is time. From the moment the controversy arises to verdict can be years. Discovery can take a significant amount of time – there is witness gathering, interviews, depositions, motion practice, etc. that all take time. Not to mention that courts have incredibly long dockets and even getting in front of a judge can take time. Mediation often happens very early in a dispute and can make all of those time consuming elements moot.
The third reason is negotiations are often unsuccessful due to posturing and attorney ethics. Attorneys are required to fight for their clients, thus, they often take a hard line in the initial negotiations. This hard line has a tendency entrench the parties in what they believe are their strongest arguments, instead of looking for common ground. Common ground is essential for settlement. The mediator’s job is to have the parties focus on exploring productive possibilities for settlement and not on posturing or strongest arguments.
Fourth, the mediation also allows the parties to focus solely on the issues. Everyone integral to resolving the dispute is present at the mediation and no one is distracted by the litany of other things that he or she is responsible for. Plus, the parties, if properly prepared by their attorneys, come to the bargaining table with the express purpose of trying to settle the issues, thus greatly increasing the possibility for settlement.
Fifth, with all of the parties present, the main parties, not their attorneys, get the opportunity to explain their positions and everyone gets to feel the emotions of both sides. This allows everyone involved to get a more realistic view of the opposite side, which can lead to resolutions being brought to light that otherwise would never have been explored. This also allows the parties to get a realistic look at their case, allowing the parties to see what the outcome will likely be in arbitration or trial. This clarity aids in resolving the matter in mediation.
The sixth, and perhaps most important reason, is flexibility of results. Juries, judges, and arbitrators often think that money is the correct solution and therefore, that is what they offer the parties as resolution. However, money doesn’t fix everything. The parties know what they need to resolve the dispute. Allowing the parties to negotiate a settlement that works for them and allows everyone to walk away with their dignity in tact is a very attractive feature in mediation.
Think about it like this, familial disputes, perhaps the most common disputes mediated, involve very high emotions and a tremendous amount of history. The mediator can guide the parties to a settlement that actually works for their needs. Assets can be divided quickly and custody agreements that actually work for the parties can be negotiated. More importantly, in these types of disputes, mediation can aid in or start the healing process. This can be incredibly cathartic for the parties.
While it may seem unnecessary to go to mediation because a settlement just doesn’t seem likely, remaining open to the idea and coming to the mediation with an open mind will save everyone money and time. It also allows the parties to negotiate a settlement that actually works for them and isn’t dictated to them. Mediation allows the parties to maintain their dignity and can, if done properly, allow everyone to walk away happy and with their heads held high.