Mediation: A Simple, Effective Approach for Resolving Complex Issues

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.

The Value of Mediation: Your Opportunity to Control the Outcome of a Dispute

What if you had a crystal ball that could predict the outcome of your pending litigation in court or even a proposed legal action? Would you do things differently? Oh, don’t you wish! The stark reality is that once you go to trial, the resolution of a dispute is out of your hands. You are essentially waiving your control of any legal settlement to an unfamiliar third party, whether it is a judge, a judicial panel or a jury. You do, however, have an alternative to this litigious situation: mediation. The process involves the selection of a neutral third-party that attempts to resolve a legal dispute through discussion, negotiation and, hopefully, a mutually acceptable compromise.

Yes, I did say “compromise,” but that is actually a good thing. All parties in a dispute need to regard compromise as a means for resolution, not confrontation or disappointment. It is the last point in litigation in which you still have control of your decisions before someone else steps in and takes over completely. At that point, all disputing parties must face the truly unknown consequences of a trial procedure. Unfortunately, in a courtroom you don’t know what’s going through a judge’s mind or through the minds of jury members. In fact, the expected outcome of a judge’s determination or a jury’s deliberation can sometimes be quite the opposite. But when you are arguing the merits of your case or defending your position during the mediation process, you have a prime opportunity to influence the outcome with your decisions — and your compromises.

In the state of Washington, whether in a federal or state court, all disputed claims or actions must defer to mediation first before a judge will even allow a case to go to trial. This is a systematic approach I strongly support. I often find that clients, even if they are sophisticated business clients, don’t always understand what mediation is or its benefits. So in all of of the contracts that I draft for my business or transactional clients, I insert a mediation provision requiring all parties in a dispute to engage in mediation before they can even file suit in state or federal court. I rarely receive an objection to this provision, because all clients at least ponder the idea of settling a case before entering litigation. A neutral third-party can provide a fresh perspective on the merits of your case and your defense, as well as the weaknesses of your case and your defense.

Occasionally a client may have a corporate policy barring the use of mediation, but overall, I have found the process to be a valued alternative to lengthy litigation in court, and mediation can be applied to virtually all types of legal disputes — large and small. Of course, mediation is not always successful the first time out of the gate. I have encountered this often in multi-party construction claims cases, in which the initial mediation doesn’t solve the issue, and nobody wants to settle. However, as the trial deadline approaches, everybody realizes that this opportunity to determine and control an equitable outcome is fast-disappearing, so they call back the mediator in an attempt to reach a settlement. That scenario, unfortunately, is becoming more and more common. Perhaps people think they can gain bargaining power as a case proceeds, but more often than not, their bargaining power actually dwindles as the trial date gets closer. Inevitably, most will go back to the mediator.

Mediation agreements are not without recourse either, should a stakeholder default on the terms of the settlement. In Washington, for instance, the provisions of a mediation agreement can be legally binding and enforceable when a prepared document is signed jointly by all parties to the dispute. If someone later decides to back out on the settlement, the other parties can proceed to court and have the mediation agreement enforced as a matter of law. That action in itself shows a judicial preference and favor for mediated dispute resolution over a court trial bureaucracy.