Mediation NOT Litigation Just Makes Cents!
As the cost of litigation continues to escalate, alternative dispute resolution has become the process of choice for achieving justice. Since the 1980s, civil trials have been steadily declining according to the statistics for a 2005 article in the Wall Street Journal which asserts that in 1984, there were 14,300 civil trials in federal courts; last year, there were only 5,500 and in the state courts there was a 34% drop of in the number of trials. The Los Angeles Daily Journal (Feb. 13, 2009 edition) confirms the decline. Mediation and arbitration provide cost effective alternatives to trial by jury.
Mediation is a form of alternative dispute resolution (ADR) or “appropriate dispute resolution“, which has evolved to assist two (or more) disputants in reaching an agreement. The parties themselves determine the conditions of any settlements reached- rather than accepting something imposed by a third party. The disputes may involve (as parties) states, organizations, communities, individuals or other representatives with a vested interest in the outcome.
Mediation, in a broad sense, consists of a cognitive process of reconciling mutually interdependent, opposed terms as what one could loosely call “an interpretation” or “an understanding of”. The German philosopher Hegel uses the term ‘dialectical unity’ to designate such thought-processes.
It is a non-adversarial approach to conflict resolution. The role of the mediator is to facilitate communication between the parties, assist them in focusing on the real issues of the dispute, and generate options that meet the interests or needs of all relevant parties in an effort to resolve the conflict.
Unlike arbitration, where the intermediary listens to the arguments of both sides and makes a decision for the disputants, a mediator assists the parties to develop a solution. The art of mediation covers a broad spectrum of techniques from the evaluative approach employed by many retired judges as contrasted to the transformative model. The primary goal of transformative mediation is to foster the parties’ empowerment and recognition, enabling them to approach their current problem, as well as later problems, with a stronger, more open view.
Although mediators sometimes provide ideas, suggestions, or even formal proposals for settlement, the effective mediator enables the parties to define the agenda, communicate more effectively, find areas of common ground. By reframing the issues, the tension that impedes reaching a settlement can be negotiated like rapids through to the safe harbor of a resolution in which all participants are invested in the outcome.
The Process: The style of individual mediators may vary, but the essential ingredient is confidentiality, i.e., what is said here stays here until you say otherwise.
In the initial phase before commencement of a mediation session, discussion with one or more parties to the conflict may be had to formulate a structure/format for the mediation that is comfortable for all participants.
The participants should include all persons necessary to fashion a binding resolution of the matter. It is a statement of the obvious to say that those who have the decision making authority are essential. If the dispute involves employment issues, the person with authority such as personal director or human resources director, the employee, the union representative, etc. ought to be at the table. If the matter involves an insured liability, the representative with authority is essential. While it is possible to achieve a binding agreement with necessary parties participating by telephone, the odds are substantially reduced when all necessary parties are not at the table. See How to Get the Most Out of Mediation
The initial mediation session generally will start with all participants having an opportunity to exchange their points of view. Depending on the magnitude of the matters in dispute, this may range from a concise statement of each party’s position to a more elaborate presentation of videos and other demonstrative evidence bearing on liability or damages. The joint session will typically continue as long as a productive dialogue is in progress. Some cases can be resolved in joint session, though generally separate caucuses are necessary to advance the resolution dialogue.
Separate caucuses are held with each party in interest. In caucus, confidentiality is the byword. Absent the inhibiting presence of the opposition parties can be more candid exploring their options. The overarching mantra is, “what is said in caucus stays in caucus,” unless specifically authorized for transmission to the other side.
Complete resolution may not be achieved in the initial mediation session, but the parties may reach agreement on issues, reduce such agreements to writing then schedule further mediation sessions after additional conducting discovery or obtaining the opinion of an agreed upon expert. Once a complete agreement is reached, the parties can draft an agreement containing the terms and conditions of settlement, including such things as the time for performance or payments.