No doubt, many of you have watched a few evening
television dramas depicting the mediation process. Scurrying from one
conference room to another numerous times, sometimes carrying sandwiches and
beverages, the mediator attempts to settle the differences between disputing
parties to stave off an impending courtroom battle.
Believe it or not, except for a few embellishments, the
television portrayals of mediation are fairly accurate — or at least more
believable than the courtroom antics often aired. There is, of course, more detail to the mediation process
than what I just described, but the salient point is that mediation can be a
valuable tool in settling legal claims before they escalate to the trial level.
In fact, in states where mediation is regularly deployed, there has been a 95
percent success rate of resolving conflicts prior to litigation, making it one
of the more popular forms of alternate dispute resolution.
Aside from being a positive, upbeat approach for settling
legal claims through discussion, negotiation and compromise, the mediation
process is quite expedient and cost-effective as compared to lengthy and
expensive courtroom litigation. Consequently, to help streamline the legal
process, many jurisdictions across the United States are requiring that
all disputed claims defer to mediation first before considering any litigious
action in a courtroom. In all of the contracts I draft for business or
transactional clients, I build in a provision requiring neutral third-party
mediation as a preventative measure to avoid litigation.
Neutral
mediators can be retained from several sources. For instance, local attorneys
who have quality reputations as problem solvers are always a good choice. I
often use the mediation services of Christopher
Soelling, a well-respected Seattle lawyer. Retired judges, local or
statewide, that are trained and experienced in dispute resolution are other
prime sources for neutral mediators. There are also professional mediation
services available statewide or regionally, or you can contact the American Arbitration
Association regarding their professional mediators who serve nationwide.
In all mediations, preliminary documentation is required of all
parties to a dispute, including an exchange of position papers or mediation
briefs. Generally, two separate sets of mediation briefs are distributed, one
for the parties undergoing mediation and the other specially earmarked for the
mediator. And as you would expect, there are
basic ground rules for conducting mediation.
Ethicsl rules prevent the sharing of confidential
information between disputing parties by the mediator. However, with
permission, a mediator may share information to encourage settlement. Also,
joint sessions of the disputing parties are permitted, but most attorneys
involved in mediation waive that right, preferring the process to be conducted
in separate rooms with the mediator acting as the “go-between” in negotiations.
It is important to note, too, that a mediator does not decide the outcome of
any mediation, but acts more like a facilitator working toward solving
problems.
Sometimes,
mediation is not successful initially, and there can be occasional roadblocks.
When dealing with construction claims cases, for example, you need to have an
insurance adjustor available on site to make decisions. The same goes for large
corporations or multi-claim disputes. You must have someone with authority present
during a mediation to sign off on any conditions for settlement.
Eventually,
though, perhaps after several attempts, mediation will usually result in a
successful compromise between disputing parties. And in some states, like Washington, once a
settlement is reached and general terms are accepted, the
provisions of a mediation agreement can be legally binding and enforceable when
a prepared document is signed jointly by all parties of the mediation.
