Mediation: The Sensible Alternative to Litigation
Most folks who sue someone angrily, in an effort to redress a wrong that was done to them, say “I only want my day in court.” But having your “day in court” these days is not a sure thing. The court systems in Arizona’s two most populous counties are struggling to deal with a mountain of litigation.
Clearly, anyone who becomes a litigant thinking that he or she is actually going to get their “day in court” is facing astronomical odds.
To add to this frustrating situation, the litigant (person suing) has about the same control over his or her destiny as a bull-rider coming out of the rodeo chute. The civil litigant, for the most part, is just along for the ride. As in the rodeo, there will be a winner and a loser, but the parties are often not satisfied with the result. The next step is to appeal to yet another court. But there, too, in southern Arizona, the delay can be a year or two before an appellate panel rules on the case.
The system is currently able to function mainly because, in many cases, the lawyers make good faith efforts to settle the matters. But most settlements, even settlements involving significant amounts, sometimes leave both parties with the unsatisfied feeling that they did not, truly, get their day in court.
An increasingly popular alternative to this cumbersome and frequently frustrating process is mediation. Mediation allows the litigants to actually participate in and have control over their own destinies. It is a purely voluntary, non-binding process, in which the opposing parties appear with their counsels before a neutral person, called a mediator, who, through training and skill, tries to find a middle ground or solution that both parties will accept. Here, the parties, not the lawyers, are in control of their situations. They can agree to a settlement and end the litigation, or they can refuse to settle and proceed with the litigation alternative.
A successful resolution to a dispute can often be traced to the skills of the mediator selected. The mediator’s task, as described by Professor Joseph Stuhlberg, a nationally renowned mediation authority, is to obtain the commitment of the parties to participate in the mediation process. In other words, not just the agreement of the parties, but a real commitment to take part in the process.
According to Professor Stuhlberg, it’s the job of the mediator to BADGER the parties into a settlement.
Begin the discussion;
Develop the agenda and discussion strategies;
Escape to separate sessions (from confrontational meetings);
Resolve the dispute.
No party to litigation should avoid mediation. There is no downside. First of all, it’s completely confidential. Thus, the litigant can attempt to resolve the dispute without any risk. If the matter isn’t settled, nothing has been lost and often a much better understanding of the motivations of the opposition has been gained. Secondly, mediation can be pursued while awaiting a trial or arbitration date without any loss of “position” on the calendar. Finally, the cost of mediation is modest when compared with the oppressive cost of litigation or arbitration.
Many industries have resorted to arbitration of disputes, rather than litigation, under the belief that arbitration is speedier, cheaper and allows the parties to utilize fact-finders with special expertise, theoretically resulting in a more “just” result. However, experience shows that arbitration may not be speedier nor any less costly than litigation. Arbitration is actually the substitution of one forum for another. Parties to “final, binding” arbitration also discover, to their dismay, that the loser in arbitration may not resort to the courts, except in rare situations. Moreover, arbitration cases are often large ones. Disputes between investors and their stockbrokers are almost always relegated to arbitration. Most construction disputes, and disputes between architects and their clients, end up in arbitration or in a partial fight in both the courts and arbitration.
Dissatisfaction with both litigation and arbitration has created an increasing use of mediation as an alternative dispute-resolution mechanism. While not a new phenomenon (labor disputes have long involved mediators), what is new is the increasing demand, both by the courts and the public, for mediation to resolve disputes in a greater variety of civil matters than ever before. These may include personal injury cases, dissolution of marriages, probate disputes between heirs, disputes between property owners, business disputes of every type and more.
A current debate in mediation circles concerns the question of whether or not the mediator will provide the parties with an evaluation of their position. Many parties would like to substitute the term “non-binding arbitration” for the term mediation. If that is the goal of a party, they have missed the point. The mediator is not there to judge cases.
While most mediators will provide some input as to whether or not they think a particular position has merit, the agreement to settle should be the product of the mediator’s skill in getting the parties themselves to find a common ground for resolution. Having a mediator impose a settlement on the parties is, in the opinion of this writer, a failure of the mediation process.
A final thought: One of the biggest difficulties facing a mediator is the fact that the parties often wait until the last minute to come to mediation. The end result is that the question of attorneys’ fees often drives the process. It, therefore, makes sense for parties to consider mediating their dispute at the earliest possible time, perhaps even before initiating a lawsuit or arbitration. Usually the parties’ positions are well developed before suit is filed. The mediation process can be much more effective if the positions are still somewhat fluid and before thousands of dollars have been invested with counsel. The mediation process can help in the dispute resolution, whether it settles the matter or just moves it along toward a clearer understanding of the dispute.
For sensible, practical reasons, every case should go through the mediation process.