By Justice Eakin
Mediation is an alternative private process for disputes that otherwise require resolution in the court system. Litigation is a lengthy and expensive process; mediation brings the parties together to identify and discuss issues and interests, air their concerns, and explore ideas for a satisfactory resolution of the dispute. While courts can require mediation, the parties are not required to come to agreement, and the Mediator cannot dictate a result. As no participant in mediation can force anything on anyone, all are motivated to work together to solve the issues and reach best agreements.
The mediator’s role is to ensure a voluntarily and informed process, without coercion or intimidation. The Mediator’s goal is to help the parties find a resolution that is mutually acceptable. Mediation is not about uncovering truth, declaring fault or blame, and it is not preoccupied with legal rules. The parties are prompted to understand that accepting less than expected is the hallmark of a fair settlement, and they should consider the cost of litigation and the time and aggravation involved if a resolution is not reached.
Most mediations start with a joint session. The Mediator describes the process and the Mediator’s role and establishes ground rules and an agenda for the session. Generally, parties or their counsel then make opening statements, uninterrupted, expressing their position and concerns. This is often the first time each side can express their position without disruption, and the first time each has heard the other side’s expression without interruption.
While some resolutions are reached via a joint session, more often Mediators will separate the sides and shuttle between the parties. These private and confidential discussions involve open-ended questions and active and feedback. The parties should expect a candid risk analysis of their case, specifically involving the likelihood of winning or losing in court, and explanation of the actual consequences of a court decision. The parties should discuss their positions and concerns, and get a realistic assessment of what they might expect to pay or receive. This allows parties to vent frustrations, but also encourages recognition of the other parties’ positions. It also allows the mediator to listen for clues about what other factors may be driving the parties.
Once the parties have fully considered all relevant matters, their attorneys will work on the deal that will settle the case. The Mediator will encourage a specific but flexible proposed solution from each party, working “shuttle diplomacy”, a give and take designed to close the gap between the sides.
When a settlement is imminent, with the help of counsel the Mediator should prepare a Memorandum of Understanding, and call everyone together to sign. While there may be a need for other documents, such as releases, dismissal of lawsuits, obtaining of financing, etc., the parties are advised the agreement may be enforced in court. Because they actively participated in voluntarily resolving issues, participant satisfaction and the likelihood of compliance are found to be elevated through mediation compared to court options.
A good lawyer is concerned with resolving a client’s problems, and mediation is often a good process to that end.
