The Law in Your Life



How You Can Effectively Use Mediation to Resolve Your Disputes

Understanding the mediation process may help promote realistic expectations among clients. Do you ever have the opportunity to understand the legal system so that you can help your lawyer save you money? Sometimes, and mediation is one of those times. By understanding the mediation process, you truly can be effective in resolving your dispute and saving yourself legal fees.

Mediation - What Is It?

It is critical to understand that mediation is not adversarial litigation like a trial. Because mediation is not adversarial, each party should understand that the normal fireworks associated with a jury trial may not be present, and are not supposed to be present. This means that negotiation and compromise are more likely to be the operative words than resistance and blame. The litigant who accepts the fact that mediation may be a compromise of each party's feelings or needs regarding the dispute, can better use this mechanism to fully resolve the dispute.

When Is Mediation Appropriate?

Mediation can be utilized when the following factors are present: (1) a desire not to spend large sums on legal fees; (2) when the parties are at an impasse; (3) when there is disagreement about the value involved in the legal matter; (4) when both parties really want a third party opinion about their claims; (5) when a quicker resolution is desired, or required; and (6) when a confidential settlement is desired.

As a general rule, when the parties really believe that their dispute involves a difference of opinion regarding value or ownership, but both parties are acting responsibly in evaluating the other party's claims, mediation might help.

When Is Mediation Not Appropriate?

Mediation may not be appropriate when some of the following factors are present: (1) where there is an outright refusal of the parties to consider any resolution or compromise; (2) where the parties want to embarrass the others in a public forum, or to call attention to the lawsuit; (3) when the parties actually want a third party to decide the outcome for them; (4) where a quick resolution is not desired (where, for example, it is to one party's advantage to delay any resolution for monetary reasons); and (5) where principle is being determined.

Believe it or not, many lawsuits are brought by one or more parties for some of these reasons, and if one of these is a major motivating factor in the litigation, the parties may be wasting their time in mediation.

What Should Be Your Role In Mediation?

It seems that one of the most important things a party to mediation can do is to have as their number one goal to resolve the dispute in a manner somewhat fair to both parties. In order to do this, a person should understand that the "gloves" may have to be left outside the mediation room prior to, and during, the mediation. A person interested in resolving the matter ought to measure the words which will be used in the process. For example, starting the mediation process by calling the other person names, or making repeated derogatory remarks will not help any compromise.

Usually at the beginning of the mediation, all parties are asked to explain their situation, in their own words, to the mediator. This is sometimes done alternatively, and out of the presence of the other side. Sometimes, where the parties do not seem particularly antagonistic, the mediator may require both parties to be present for the other's opening remarks. Often, there may be repeated sessions in which both parties are together throughout the day.

Typically, after the opening statement, the mediator does not make up his/her mind about the proceedings, so that a "Perry Mason-style" opening statement may not be as much help in mediation as it may be on the witness stand at a trial. Instead, at the end of the opening proceedings, the mediator should attempt to find some common grounds, so as to eliminate some items which the parties may claim are in dispute, but which are not. In this manner, the mediator's efforts can be focused on the key points which might result in settlement.

As the mediation progresses, each party should expect to be faced with pointed questions about the most important parts of the case. Many people feel comfortable with the mediation until they are asked to focus on the point(s) that are most important to them. All of a sudden, they become protective and defensive. This type of attitude might work in the adversarial proceedings, but simply will not produce results in mediation.

It is helpful, going into these proceedings, that each party should know that these key point(s) may be the focus of the mediator. Each party should expect that they will be asked specific questions about their positions on such points. In fact, it is helpful to practice with your attorney, and permit him/her to quiz you on the key points and how you would resolve them, if asked. It should also be apparent that if you leave the mediation relieved that you did not have to compromise on several issues which you felt were important, the mediation was probably not very successful.

What Should Be Your Attorney's Role In Mediation?

Many people expect their attorney to assume a "fighting stance" during any and all proceedings. Many clients are actually taken aback when they witness the demeanor and actions of their attorneys during mediation. The lack of fighting spirit or courtroom interrogation of the other party is more than many people can stand. Many people believe that they are paying their attorneys a large sum of money and these attorneys ought to be "sticking up" for the rights of their clients. Indeed, many clients actually believe that if the mediator or the attorney for the other side asks them a pointed question, they ought not to have to answer the question, or their attorney should "protect" them from such questioning.

All of these conceptions are misconceptions at most mediations. The mediation process is specifically designed to place the attorneys for the parties in the background. Mediation is designed to have the clients, in their own words, answer certain questions and to give their personal views about what is important to them. It is designed to be free from evidentiary rules (although evidentiary rules still govern the admission of certain evidence in evaluating the overall case), and it is designed to be free from intensive cross-examination. If your reason for agreeing to mediation is to "see the other party under cross-examination," forget it. Cross-examination is usually not part of the mediation proceedings.

So what are you paying your attorney to do? Here, the attorney's role may not be forceful, but it can be extremely valuable. Your attorney can help the mediator understand the legal issues in your case, so that the mediator can properly evaluate your case and facilitate a settlement. As an example, imagine that two parties had a dispute over the terms in a contract. An attorney might be able to inform the mediator that a certain industry standard was commonly applied to determine the meaning of one of the terms. As a case in point, in the printing business, you may contract for 1,000 brochures at a certain price. When the process is completed, you may receive 1,100 brochures and a bill for this. You might believe that since all you contacted for was 1,000, you can keep 100 and only pay for 1,000. The attorney for the other side, however, might inform the mediator that the printing industry has a +/-10% standard, which would allow the printer to print and ship, and to expect payment from, 1,100 even though the contract makes no mention of this.

Similarly, there are points in the law, as the law applies to your specific case, that a mediator might not know exist. To the extent they are favorable to your case, your lawyer might be able to demonstrate a more favorable outcome based on a certain reading of the law. If the mediator believes your attorney, your settlement might be enhanced.

Both in the preparation for, and during, the mediation, your attorney can perform a valuable function. However, his/her actions might be completely opposite from your expectations, and any party facing mediation ought to carefully consider the role of the attorney in this non-adversarial role.

What is important to remember also is that your attorney is not giving up any of your rights in mediation. Because of the informal nature of the proceedings, many things can be said which might not be able to be addressed during a trial. Sometimes this relaxation of the formal rules helps to promote settlement, because it allows a mediator to focus on the real issues crucial to each party.

Should You Use Mediation?

As a summary, if you really are interested in saving money and in trying to resolve the problem, mediation might work. It requires that the other party have the same interests also.

Most importantly, mediation can make both parties focus on the strong parts of their cases, and deal extensively with the weaknesses. If you do not want to deal with the truth in assessing the real strengths and weaknesses of your case, you may want to pass on mediation, as it will only serve to cost more money if the case is not settled.

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