Monday, October 8, 2012
Mediation in the Mainstream, and Beyond
Mediation has become a mainstream technique since I began practicing law. Thirty years ago, mediation was rare. Parties and their lawyers could settle lawsuits on their own, of course, and some judges held “settlement conferences” to encourage cases to settle, but independent trained mediators were not used very often, and lawyers did not learn about mediation or other forms of alternative dispute resolution in law school.
Typically, during those settlement conferences, the judge or a magistrate the judge appointed would browbeat the parties with the weaknesses of their position until they caved. I recall the settlement conference in one case in which I was defending a company against an individual plaintiff. The judge announced during the conference that the case should settle for $40,000. That was more than my client and I had valued the case at, but once the judge announced that figure, the plaintiff wouldn’t talk about any lower amount to settle. Trying the case would have cost far more than $40,000, so my client and I caved.
How does mediation help the settlement process?
Mediation Benefits the Parties:
Even in run-of-the-mill auto accident cases, each side spends several thousand dollars to get the case to trial, sometimes more than the likely jury award. Often, it simply doesn’t make sense to continue a case through trial, but the parties need someone to help them resolve the matter in a way that they both can accept.
Speed: Mediation is faster than litigation. Both parties may want some discovery prior to mediating, so they know something about the other side’s case. But typically the dispute can be mediated soon after the parties have exchanged basic documents and taken a few depositions.
In most civil cases that go to mediation, the parties later said they wished they had mediated sooner. After all, if the case doesn’t settle at the first mediation, the parties can agree to resume the mediation after additional discovery.
Control: The parties have more control over the outcome. In a trial, the judge or jury decides what happens. In mediation, the parties are free to devise their own resolution of the dispute. Sometimes, they can agree to things the judge couldn’t give them – such as exchange of property, or reference letters, or other non-monetary remedies.
And the parties can set the terms for when payments and other exchanges will be made – the winning party doesn’t have to worry about executing on a judgement.
Mediation Helps the Judge:
Preserves Impartiality: Mediation gets the judge out of pushing for settlement and preserves the judge’s impartiality. The judge can focus on the pre-trial and trial issues, without giving any indication of the strength of each side of the case, nor voicing an opinion on the value of the case.
Reduces Caseload: Plus, the more cases that settle during mediation, the less work for the judge to do. Most judges these days appreciate the value of mediation in reducing overcrowded dockets and streamlining their caseload. I don’t know of any judges who wish they could browbeat parties more into settlement. They are happy to require pre-trial mediation, and let the mediator try to settle it.
For all these reasons, mediation is a helpful process for both the parties and the court system. It preserves resources that would otherwise go to the lawyers, and leaves more resources available for the parties to use in resolving the matter to their own satisfaction. It is a good thing that mediation has become a mainstream tool in dispute resolution.
The Future of Mediation:
Mediation began in the context of resolving lawsuits, and that’s what I know the most about. However, mediation is moving beyond settling cases and into resolving other forms of disputes.
Mediation is now used to resolve school, neighborhood, workplace, and other forms of social disagreements. I heard one mediator joke that every neighborhood association needs a mediator on the board. It was said as a joke, but the person was only half kidding.
Will mediation move beyond the mainstream into everyday life? Or will we all learn mediation skills to reduce the contentiousness of modern society? A pipedream perhaps, but who knows?
American Bar Association members can find more information at the Section of Dispute Resolution's website. A public source for information on mediation is the Building Dialogue blog.
Have you tried mediating a dispute you had? What did you like and dislike about the process?