Mediate—The Win-Win Alternative to Litigation

Mediation is fast becoming one of the most accepted methods of conflict resolution. No longer do you have to go to court to resolve your disputes. Now you have a choice! You can choose to work out your differences and resolve them your way, tailoring your solutions to fit your particular set of circumstances.

Today's Legal Evolution

While mediation has been in existence for decades, the general public is only now beginning to hear about this form of dispute resolution. In my opinion, our legal system is in the midst of an unprecedented evolution, with mediation being the latest phase of that evolution. Arbitration was the first phase. Briefly, arbitration is like an informal trial. The arbitrator, after listening to each party present evidence and cross-examine one another, enters an award for one side and against the other. Mediation, in contrast, is not judgment based but rather derives from the win-win principles of negotiation. My prediction is that mediation will soon be the most favored and frequently chosen method of dispute resolution.

The Process

Mediation, first and foremost, is a negotiation process. The end result of mediation is a legally enforceable contract; not a third party ordered judgement. It is the end contract that puts "teeth" in the mediation process. The mediated approach to resolving disputes undeniably challenges the adversarial paradigm to which we have become so accustomed. Mediation, unlike litigation and arbitration, treats disputes as solvable problems and not as win-lose situations. What most of us often mistakenly assume is that when we disagree on one thing, we cannot agree on anything. What we fail to realize is that frequently the concerns underlying our disagreement are reconcilable.

For illustrative purposes, consider a simple hypothetical. Suppose "X" hires "Y" to repair his vehicle. X believes his vehicle's brake pads are worn. Y finds that the problem is more extensive than X believed and diligently repairs the vehicle. X, amazed that the bill is more expensive than he anticipated, refuses to pay the bill. Y prepares for a legal battle. What Y does not know is that X's primary reason for not paying the bill is that X is experiencing financial difficulties due to a recent surgery. What X does not realize is that Y would like to retain X as a customer because Y knows that X works in the automobile industry and might be able to provide Y with future referrals. Through mediation, X and Y would be able to arrive at a mutually beneficial solution by discussing these "underlying concerns" either with one another or with the mediator in private sessions. On the other hand, if X and Y were to engage in a legal battle, their dispute would revolve around payment of the bill. Under our rules of evidence, X's and Y's underlying concerns would most likely never be addressed as they would be deemed "irrelevant".

The Mediator's Role

The mediator's role is to guide the parties to the contractual resolution of their differences. Initially, the mediator will ask each side to present his or her version of how the dispute between them evolved. The mediator will then facilitate the generation of ideas by using active listening and issue identification skills. Often times, the mediator will meet separately with each party to discuss matters the respective party is uncomfortable disclosing in the presence of the other party. At the conclusion of the mediation, the mediator will prepare a Memorandum of Agreement, which summarizes the final win-win solutions to which the parties have consented.

The Many Benefits

No matter what the type of dispute, the advantages of mediation are numerous. Principal among the advantages is that mediation gives the parties the ability to communicate directly with one another. They are able to prevent unintended miscommunications by expressing their ideas in their own words and in their own way.

Another advantage of mediation is its flexibility. The mediation process enables the parties to choose where they want to meet, when they want to meet, and how often they want to meet. The parties can include whomever they want in the mediation sessions. Additionally, mediation discussions are not limited by rules of procedure or evidence, allowing the parties to discuss the "heart" of their conflict immediately and freely.

Yet another advantage of mediation is its confidential nature. The parties must agree to keep their discussions confidential, promoting full and open disclosure. The parties can then brainstorm creative solutions to their disagreements.

Finally, mediation overwhelmingly proves less timely and less costly than litigation. Mediation eliminates the formalities of a lawsuit and, consequently, avoids many of the legal fees and costs associated with litigation, e.g., filing fees, service of process fees, court appearances, depositions, etc.

Applications of Mediation - Business and Non-Business Disputes

Mediation can be used to solve almost any kind of disagreement, including consumer disputes, employer/employee disputes, partner/owner disputes, and family disputes.

Mediation also can be used at any stage of the dispute process. What this means is that mediation can be used to resolve disputes both before they escalate into a legal battle, e.g., to prevent claims of discrimination, as well as any time after a lawsuit has been filed. Additionally, mediation can be used to resolve non-legal conflicts, such as those that arise in work situations between business owners and/or co-workers.

To illustrate how mediation works in a business dispute, consider an employer's decision to terminate an employee. Through mediation, the parties engage in a discussion of their differing points of view. The employer's primary concerns may include the preservation of his/her business' good will, maintaining high morale at his/her company, and avoiding high legal costs. The employee's primary concerns may include a desire to be heard, a fair compensation package, and the ability to secure future employment. Through mediation, the parties can address all of these concerns by providing for the confidentiality of their discussions, the employee's forbearance from filing a lawsuit, the "resignation" rather than the termination of the employee, and a mutually agreeable compensation package.

To illustrate how mediation works in non-business disputes, consider a couple's decision to divorce. Through mediation, the parties can provide for future living and other arrangements, specific to their individual situations. For instance, perhaps one spouse believes he/she is entitled to $50,000.00 in support. The other spouse disagrees. The respective spouses may agree to a reduced amount for spousal support, with the difference being used to pay for the couple's children's college education.

The Future of Mediation

As I mentioned at the beginning of this article, I believe mediation will be the wave of the future. Local court rules now provide for mediation in commercial and divorce proceedings. Judges increasingly recommend mediation prior to proceeding to trial. Large businesses are creating in-house mediation departments. Organizations like the American Institute of Architects are incorporating mediation clauses in their model contracts. These are just a few of the many exciting signs that mediation already is an integral part of our legal system and business world. I am confident that mediation will become increasingly prevalent as people realize that, regardless of their disagreements, they frequently share common goals, e.g., saving legal costs, preserving relationships, maintaining confidentiality, avoiding lost business opportunities, and having the opportunity to "be heard."

Robin Hoberman, attorney at law, is the founder of Solutions First Mediation Services, Inc. To learn more about how mediation can benefit you and/or your company or to schedule a presentation on mediation, call 312-386-1467 or e-mail at robin@solfirst.com.