We are in the midst of a litigation crisis. The high cost and long delays associated with the trial of civil matters often make litigation an impractical method of resolving disputes. It is not uncommon for the attorney fees, expert witness fees, jury fees, court reporter fees and other related costs to exceed the amount in dispute. Parties increasingly find that they are spending more to litigate than the cost to settle the matter.
Because the current legal environment discourages the early settlement of disputes, society is demanding a better approach for resolving disputes more efficiently. That better approach is mediation.
WHAT IS MEDIATION?
Mediation is a process for resolving disputes by which an independent mediator assists the parties in reaching a mutually satisfactory settlement. It is an extension of the parties own negotiations and is sometimes referred to as a "supercharged negotiation."
A mediation session involves a discussion of the dispute by the parties, as opposed to the formal presentation of witnesses and evidence such as takes place in a trial or arbitration. The session will normally be attended only by the mediator, the parties and their attorneys. Because of the informality of the process, a mediation can usually be completed in a day or less or over several shorter sessions.
The mediation process is entirely voluntary and non-binding. The mediator has no power to render a decision or to force the parties to accept a settlement. Rather, the mediator's role is to assist the parties in their negotiations by identifying obstacles to settlement and developing strategies for overcoming them.
A mediation session is private and confidential. It is normally held in a private office or meeting room and no public record is made of the proceedings. If no settlement is reached any statements during the proceedings are inadmissible as evidence in any subsequent litigation.
A mediation session typically begins with a joint meeting of the parties, counsel and in some cases, insurance company representatives. The mediator first explains the format and discusses the confidential and non-binding nature of the proceedings. The mediator will then ask the attorneys for each of the parties to make a presentation of their case, identifying the issues in dispute.
Following the joint meeting, the mediator may the parties and begin meeting with them in a series of private, confidential meetings called "caucuses". In these caucuses, the mediator works with each of the parties to analyze their case and develop options for settlement. Normally, the mediator will caucus numerous times with both sides.
Mediation is different from arbitration in that the mediator does not render a decision. Instead, the parties make their own decisions and fashion their own settlement. The mediator generally doesn't make recommendations but rather, allows the parties to make their own decisions based on a realistic analysis of their case.
WHY MEDIATION WORKS
Why does mediation work, when the parties have been unable to settle the case themselves? There are a number of reasons. First, negotiations between parties or counsel may never take place without the assistance of a third party mediator. Attorneys often fear that making a "reasonable" settlement offer will be taken as a sign of weakness or will be used by the other side as the starting point for the next round of negotiations. Mediation provides a safe environment for negotiation because the mediator can control and direct the communications. In this fashion, unproductive discussions can be avoided and concessions or proposals will be communicated only if they are likely to lead to a settlement.
Second, in those cases where some negotiations have taken place, they are often unsuccessful because the parties lack essential negotiation skills. Attorneys are often more interested in posturing, than in resolving disputes. As a result, they often employ hard bargaining tactics which emphasize the differences in their positions rather than seeking a common ground for settlement. Since the mediator's job is to keep the parties focused on exploring productive avenues to settlement, posturing and hard bargaining are often reduced or eliminated.
Third, mediation provides the opportunity for all parties to meet at the bargaining table for the express purpose of discussing settlement. All decision-makers necessary to resolve a problem are normally present. These decision-makers, who otherwise may be unavailable or distracted by other business matters, are able to focus their attention on reaching a settlement.
Fourth, during the mediation session, each party is given the opportunity to directly educate and influence their opponents in the opening presentation. Important issues can be emphasized and facts can be presented in a more favorable light. Also, the intensity of a party's feelings or emotions can be conveyed. As a result, the mediation session normally provides each side with a more realistic, unfiltered view of the opposing position and often results in the consideration of settlement proposals that otherwise would have been rejected.
Fifth, mediation allows each side to "test market" a settlement proposal by privately conveying the proposal to the mediator in a caucus. Unless authorized to do so, the mediator will not convey the proposal to the other party. The mediator will, however, be able to receive confidential proposals from the other side. As a consequence, the mediator can help the party to determine whether a proposal is feasible without actually disclosing it to the other side. This allows each side to fully explore settlement options without negotiating against themselves or appearing to "give in".
Sixth, mediation offers each party a "realistic" look at their case and what results they are likely to achieve in court or arbitration. As the parties become clear on what they can realistically expect to achieve, their positions on settlement may become more reasonable and flexible.
Seventh, mediation assists the parties in developing options for settlement. The more options that are developed, the greater the chances of success. Experience demonstrates that attorneys often excel in developing facts that support their positions but bog down when it comes to developing settlement options. The mediator can assist the parties to clarify their real objective and to consider alternatives that might be overlooked by attorneys engaged in battle.
CONCLUSION
The bottom line is that mediation works! It works because it brings all necessary parties to the bargaining table where they can "realistically" evaluate their positions and safely explore settlement options. Today, parties often litigate because they are unaware of a better alternative. However, as the benefits of mediation become more widely recognized, it may become the most utilized tool for resolving civil disputes.
The author, Jay Lazrus, is an experienced attorney and neutral. For more information, or to retain his services as a mediator or arbitrator, please visit his website at www.raegroup. com or go to www.virtualcourthouse.com and select him as your neutral.
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