Monday, October 8, 2012

Mediation in the Mainstream, and Beyond

Next week, October 14-20, 2012, is Mediation Week, sponsored by the American Bar Association’s Section on Dispute Resolution. The purpose of Mediation Week is to increase the public’s awareness and understanding of mediation. This year’s theme is “Mediation in the Mainstream.”

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:  

Cheaper: Mediation is much cheaper than litigating the case all the way through trial. Complex lawsuits can cost $10,000/month or more in attorneys’ fees. It isn’t unusual to see a large corporation spend over $100,000/month on a “bet the farm” type of case.

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?


  1. Mediation is a broad term with many definitions. For many mediators, the process should be entirely voluntary, with no coercion. If the parties are pressured into settling because "that's what will happen if you go to court" then the process should better be called "settlement" not mediation. A very important component of mediation is the lessening of hostility between the parties. Sometimes what the aggrieved party wants most of all is an apology.

    1. Peg, thanks for this comment. It is often difficult to distinguish settlement and mediation. A good mediator really does facilitate the discussion about resolving the dispute, to a far greater extent than in a settlement conference where the alleged neutral person often just slaps the parties around to move them to a middle ground.
      As a defense attorney, nothing irritated me more than being told by the person running the settlement conference that I HAD to make my client cough up the costs of defense, regardless of the merits of the case. Pure extortion.

  2. Sara,

    I once attended a mediation designed to avoid a small claims court hearing. As I recall, the claim was about 500.00. I was an observer, hoping to become a mediator. The plaintiff presented her case, the defendant answered. There was some discussion directed by the mediator. Then the mediator asked the plaintiff where she was on the original amount of 500.00. The plaintiff said she'd take 450.00. The defendant said, well...okay.

    I behaved well as an observer. I did not say, "are you kidding me? There's no case here. Take it to the judge. Go for zero." I can follow rules, and I did that day.

    I know ADR saves money and works quickly. But in this one small case, the defendant took it on the chin. She needed advice, but didn't get any, even from me.

    Perhaps in larger cases, advisers are involved, and this problem doesn't occur. But, in this case, the mediator went for the settlement, and justice was not an issue.

    1. Dane,
      I am always amazed how cases settle, particularly when the parties are not represented by attorneys.
      Sometimes one party just wants to be done with the situation. Sometimes there are relationships one or both parties want to preserve. Sometimes they recognize the case should never have been filed.
      One of the hard things about being a mediator is knowing when to be quiet and when to intervene. Usually, if the parties are talking to each other, it's best for the mediator to be quiet.