Mediation: The Better Way

The answer is that unlike the parties and their lawyers, the mediator is a neutral, knowledgeable person whose only function is to help the parties work out their differences. Statistics show that when opposing parties choose to mediate their case, they reach a settlement much more often than not.

One of the great unseen costs of suing or being sued is the huge distraction from one’s personal and work life. A settlement may not make a person happy, but it has one undeniable benefit – the case is over. No more lying awake at night worrying about what will happen next, when the case will come to trial, how many times you will need to stop whatever you would otherwise be doing in order to meet with your lawyer, appear for a deposition, attend hearings, and the like.

Lawyers charge for services on either a contingency basis, commonly used in personal injury cases; or by the hour, generally broken down into six minute tenth of an hour increments, which is typical in commercial cases; or by a flat fee, which often varies depending on whether or not the case goes to trial. When the fee is time-based, lawyers charge for meetings, court appearances, research, emails, talking on the phone, and the many other tasks associated with representing a client. As anyone who has been there knows, the time mounts up quickly, and it isn’t always subject to your lawyer’s control. The opposing lawyer is bound to create work, and therefore expense to you, by sending out document requests, taking depositions, filing motions, and so on.

People often confuse mediation with arbitration. Other than being forms of what is called “alternative dispute resolution” (ADR), they are entirely different. Arbitration is a process in which a neutral sits as the “judge,” substituting for the judge in the courthouse. Organizations such as the American Arbitration Association exist to enable parties to choose an arbitrator, or sometimes a panel of three, and conduct hearings where each side calls witnesses. The process is less formal than the courtroom and is thought to be less expensive. With hardly any exceptions, what the arbitrator decides is the end of the case. The losing party has no right to appeal.

Mediation is fundamentally different. No witnesses, no hearings – just a process where the parties and their lawyers convene in a safe environment. By definition, mediation is voluntary; people choose it, which is the first reason for its strong record of success. If both sides agree to mediate, they are signaling an interest in trying to resolve the case.

There is no single answer to that question. It may be useful to mediate at the beginning of the dispute, even before a complaint has been filed with the court. Where the case involves “personal” matters or might attract public interest, this can avoid the embarrassment of washing dirty laundry in public.   Among other things, mediation is 100% confidential.

On the other hand, trying to mediate at the very beginning, before the parties have had a chance to take “discovery” (meaning look at each other’s documents, take depositions, and the like), can harden positions rather than promote compromise. Each side thinks it is right, and neither has had a chance to demonstrate why the other side’s case isn’t as good as he or she thinks it is.

There are at least two related reasons.

• Voluntariness: A party can choose whether or not to mediate.
• Ownership: Anytime a party decides that mediation isn’t getting anywhere, he or she can simply say, “I’d rather take my chances in court,” and the mediation ends..

Another important factor is that mediation provides an opportunity to “test” your case in a risk-free environment. Mediators don’t decide cases, but they will often tell parties, usually outside the hearing of the other side, what they think about the merits of the claim or defense. Some mediators see their function as expediting a dialogue and not engaging in an evaluation of the case. In my experience, however, an evaluation is often the most useful part of the process.

Mediation involves “shuttle diplomacy” in the sense that it takes place in at least two rooms, with the mediator moving back and forth in order to have private discussions with each side. That is how the mediator acquires a deep understanding of what is really at stake and what the party may need in order to reach a settlement. For that reason, it is important that the parties select an experienced and knowledgeable mediator. Whereas judges are limited in what remedies they can provide, a mediator can propose innovative solutions. One example is to have an apology as part of a settlement. Courts can’t do that.

Mediation isn’t always successful. The issues may not lend themselves to a compromise, especially where the case truly involves matters of principle and not just dollars. In such a case the notion of compromise may simply be unacceptable to one side or the other. Or one side may go into the mediation with no real interest in settlement and be so adamant that no amount of rational discussion will make a difference.

Ultimately, however, mediation offers a significant potential opportunity in virtually every legal dispute. It is, truly, the better way.