Mediation is a way of resolving a conflict, which involves the participation of the people who are involved in the dispute and a neutral person (a mediator). What distinguishes the mediation process from litigation and from arbitration is self-determination – the parties to the conflict, sometimes with the assistance of their legal counsel, come up with the way or ways in which their differences can be overcome. Unlike a judge or a jury or an arbitrator, the mediator makes no decisions that affect the outcome. The mediator’s job is solely to facilitate the parties’ coming to a resolution that is acceptable to both sides of a dispute.
Arbitration is Very Different
Probably because mediation and arbitration are both forms of alternative dispute resolution (ADR), some people use the terms interchangeably. This is inaccurate, as arbitration is quite distinguishable from mediation. Typically, the parties come to the mediation table voluntarily (or at the direction of a court), whereas the parties generally arrive at arbitration on account of a contract that provides for arbitration. The arbitrator (or, sometimes, a panel of arbitrators) is the decider. In fact, some arbitrators refer to themselves as “private judges.” The arbitrator conducts a hearing – which is akin to a trial, although less formal – at which the parties’ lawyers serve as advocates for their clients’ legal positions. After a hearing, the arbitration ends with the issuance of an “award.” Generally, an arbitration award is not appealable.
Mediation, on the other hand, is a far less formal process through which the parties and their counsel determine how the case will be resolved. The participants, not the neutral, are in control. And the participants are free to be creative in how they agree to resolve their dispute. There is no hearing. The participants in the mediation process are not restricted or by the procedural rules governing arbitration or litigation. Mediation sessions may be conducted with both sides in the room or privately in “caucus.” The parties and their lawyers are encouraged to discuss the case with the mediator – in mediation, ex parte communications are allowed and encouraged. The focus in mediation is not on legal positions; the focus of mediation is on the parties’ interests, what they want and what they need. There’s no “decision” at the conclusion of mediation, and nothing to appeal from. The parties either reach an agreement or they don’t. Statistically, mediation results in an agreement more times than not. Why? Because it works.
Why Try Mediation?
Anyone who has ever been involved in a lawsuit knows that litigation is very expensive, takes a lot of time, and may be a source of tremendous stress – and that’s before the case even gets before a judge or, depending on the circumstances, a jury. And that’s the situation even before the case gets to the trial stage. Resolution through the litigation process may take years, sometimes decades, to be resolved. And then, finally, there’s a winner and there’s a loser. If the court’s decision is erroneous or, at least, perceived by the losing side to be made in error, there may be an appeal (or several appeals) to a higher court or courts. And, sometimes, the result is just plain wrong and justice is not done, despite the best lawyering and the best judging. Most lawsuits actually settle out of court, but usually not until the last possible minute and often only after one side’s resources are depleted or one or both sides simply run out of steam.
Settling a dispute through the mediation process eliminates many of the disadvantages of the litigation process. It is faster, it costs relatively little, and can result in both sides’ being satisfied with the outcome – because the disputants themselves decide how their conflict can be resolved, sometimes in ways that may be beyond the authority of a judge or a jury. Mediation is not difficult – all it takes is the willingness of both sides to sit down and make a good faith effort to try to figure out an acceptable resolution solution. If the mediation is successful, both sides are the winners. And if an attempt at settling a matter through mediation is not entirely successful, no harm is done.
The major obstacle to engaging in mediation, I believe, is that people simply do not know that they have a choice. There’s a saying: When all you have is a hammer, everything looks like a nail. The traditional reaction of someone who feels legally wronged is to hire a lawyer and to sue. After all, we are clearly a litigious society and our legal profession is rooted in an advocacy system. But there is another way – we have more an a “hammer” in our dispute resolution toolbox, and one of these effective tools is mediation.
What Kinds Of Cases Can Be Mediated?
Just about any case that can be settled can be mediated, but some kinds of disputes readily lend themselves for resolution through the mediation process.
Business disputes: Business people are generally amenable to the concept of mediation, primarily because few business owners are looking for their “day in court” – few want nothing more than to deal with the problem in the most effective manner possible and to get on with their business.
Workplace conflicts: Employment-related disputes, such as discrimination claims and wage-and-hour disputes, are also particularly suitable for mediation. In fact, if the matter is already in the federal court, chances are extremely likely that it will be referred for mediation. For more on mediation of Title VII sexual harassment claims, be on the look out for my upcoming article, expected to be published in the January 2017 edition of Employment Relations Today.
Family-related disputes: Will and trust contests, other kinds of Surrogate’s Court proceedings, contests involving custody or guardianship, divorce, and other areas where emotions may run high are also appropriate for mediation. In fact, settling these kinds of conflicts through the mediation process is increasingly becoming the norm in several jurisdictions for a simple reason: it works.
Choosing the Right Mediator
If the parties choose to have their dispute decided for them through the litigation process, they do not get to select the judge. They can, however, select a mediator or, at least, have a say in the selection of the mediator. In choosing a mediator, the parties (with the assistance of their attorneys, if any) should consider the mediator’s background, temperament, training, and, depending on the matter at hand, subject matter expertise. Don’t be afraid to interview the mediator – with mediation, ex parte conversations are fine.