Why Choose Mediation?
Mediation is the wave of the future in dispute resolution. More and more attorneys and their clients are seeing the enormous benefits of using mediation to resolve their cases. Cases which used to take several years or more to resolve through litigation or arbitration are being resolved by experienced mediators in a matter of days. The promise of alternative dispute resolution (“ADR”) to resolve cases more quickly and cheaply is finally being fulfilled in mediation.
Mediation allows the parties to be realistic with each other much earlier in the process because everything said during mediation is confidential. Therefore, the parties can speak openly without fear of exploitation by the other side. The best time to mediate your case is early in the process before the parties are emotionally invested and the litigation budget is spent.
Evolution of Dispute Resolution
Merely a decade ago, mediation was a little known form of dispute resolution. The overwhelming success of the past ten years has established mediation in many cases as a much preferred means of conflict resolution. Mediation allows the parties to effectively resolve their disputes and salvage relationships that otherwise would be destroyed as a result of litigation.
The American system of law and justice which utilizes the jury system is esteemed for its achievements in the areas of civil rights, tort law, and protection of constitutional freedoms. Although it is clear that there always will be cases that must be resolved through a public court system, the vast majority of cases will be resolved more quickly and effectively in a voluntary process.
History is filled with great trial lawyers who changed the course of history such as Abraham Lincoln, Clarence Darrow and John Adams. But a lawyer is also a “counselor at law” who gives sound advice to the client based on knowledge and experience within the legal system. One often overlooked attribute of a lawyer is to resolve conflict as well as fight for the client. A trial lawyer is no longer great if the client wins the case but loses in terms of damaged relationships, lost productivity, and years of conflict in litigation. The following quote from Chief Justice Warren Burger highlights the tension between zealous trial advocacy and the effects on the parties involved in the trial:
“The entire legal profession – lawyers, judges, law teachers – has become so mesmerized with the stimulation of the courtroom contest that we tend to forget that we ought to be healers of conflict. For many claims, trial by adversarial contest must in time go the way of the ancient trial by battle and blood. Our system is too painful, too destructive, and too ineffective for a truly civilized people.” – Chief Justice of the Supreme Court Warren Burger, 1984.
Voluntary vs Compelled Resolution
Mediation strikes a balance between the risks and costs of litigation and benefits and savings (of time, emotions and money) of a negotiated resolution. Parties in a litigation case frequently find it difficult to reach a settlement without the assistance of a neutral third party. The litigation process generally does not lend itself to a realistic assessment of positions and/or valuations of cases by the parties. On the contrary, to prevail in litigation the parties must prepare
their cases to defeat the other side at all costs.
Mediation is very different from litigation or arbitration. The mediation process is entirely voluntary. Even in Court-ordered mediations, the parties are frequently dismissed immediately after convening and asked to participate voluntarily to preserve this vital aspect of the mediation.
Turning Conflict Into An Advantage
A unique and interesting aspect of mediation is the possibility of turning conflict into a positive outcome for all parties involved. Generally, in Western culture conflict is viewed as something to be avoided at all costs, whereas in other cultures it is a means to achieve a result that would not otherwise be attainable. In case after case, once the adversarial nature of litigation is set aside, and the parties begin focusing on the underlying interests, innovative solutions are found which not only resolve the dispute but also create opportunities for future relationships and new ideas that would have been lost without engaging in the process.
Mediation allows the parties to stop fighting and start focusing on the underlying interests (or real reason) for the dispute. Often mediation results in innovative solutions, which not only resolve the dispute but create opportunities for future relationships and new ideas that would not have happened outside of mediation.
Savings of Time and Money
Mediation makes good common sense because it pays to resolve disputes rather than perpetuate conflict. Unresolved conflict takes its toll physically, emotionally and monetarily.
Preparation for trial begins weeks or months in advance with legal briefs, exhibits, and witnesses. The actual trial may take several weeks or longer and may be postponed one or several times depending on the court’s calendar. At the end of the process, one side will be greatly distressed by the outcome and may continue the process through appeal or bankruptcy. Settlement generally occurs at the end of the case, usually on the eve of trial, when the principle or reason underlying the dispute is often forgotten, and the real world consequences of continuing to fight have become more important than the original dispute.
In contrast, preparation for mediation can be done informally through a brief letter. Mediation is often done in one day with only the parties and their counsel in attendance. Both sides negotiate to reach a resolution and thus maintain control over the outcome. There is no clear winner and loser, but rather everyone who participates feels satisfaction in having accomplished a goal and participating in the solution. The value of achieving resolution simply cannot be overestimated!
If you have not tried mediation, then now is the time to do it. I look forward to working with you and helping to resolve your case through a very interactive, flexible, and creative process. For more information or to schedule a mediation, contact us at 888.704.5556 or firstname.lastname@example.org.