A
ccord Mediation
 And Dispute Resolution Services


Home

Mediator
Profile

Areas of
Expertise

Mediation
FAQs

 Articles

Mediation
Clauses

Links

Contact Us

Comments

 

 Basic Principles of Mediation

By Dale E. Kleber     

Copyright © 2007 by Accord ADR Services .  All rights reserved.

 

What You Should Know About One of the Most Effective, Least Costly Methods of

Resolving Legal Disputes and Avoiding the Expense and Delay of Litigation.

 

This article will briefly address some of the questions that are frequently asked about mediation, which is quickly becoming the preferred method among a variety of alternative dispute resolution techniques.  While there are many applications for mediation, this article primarily addresses the mediation of commercial conflicts and business disputes.

What is mediation?

Mediation is a voluntary process where opposing parties agree to allow a neutral third party to interpose and guide them through a process of continued discussion and negotiation with a view toward resolving a dispute or conflict. The third person may be an individual mediator who has typically been trained in strategies and techniques to create a flexible process by which the opposing parties are able to resolve their differences and reach a mutual agreement.

The mediator’s role is to facilitate discussion and negotiation between the parties so that they may formulate their own agreement. This process allows opposing parties to (1) clarify all pertinent information, (2) define their respective issues and interests -- which rarely are only financial in nature, (3) develop options and alternatives to realize such interests, (4) express their interests and concerns directly to the opposing party, (5) hear and understand the other party’s concerns, (6) arrive at a mutually satisfactory negotiated solution and (7) enter into an enforceable settlement agreement to implement their resolution. 

A trained mediator will employ a number of tactics to enhance the prospects of a successful result including, questioning the parties, rephrasing their stated positions so that underlying interests surface, diagnosing hidden problems, defusing emotions, suggesting creative solutions and reality checking a party’s overly optimistic positions.  After meeting in a joint session, the mediator generally separates the parties and discusses each party’s concerns, interests and positions in a private confidential session.  In alternating discussions with each party, and often invoking additional joint sessions, the mediator attempts to help the parties find common ground upon which their dispute can be resolved.  While the mediator controls the mediation process, the parties themselves control the end result.  If a mutually agreeable resolution is not reached at the end of a mediation session, the parties are free to utilize the court system or another form of alternative dispute resolution (ADR) such as arbitration.

Mediators typically encourage the parties to focus on their respective interests, as opposed to their hardened negotiating positions, which allows greater creativity in resolving a dispute in a manner that is satisfactory to both parties.  Mediated solutions are not strictly limited to legal rights or to the award of damages.  For example, two parties in a commercial dispute, who have an interest in a continued business relationship, can agree between themselves to modify the terms and conditions of their contractual relationship going forward in ways that a court of law cannot.  It is often said that mediation has more of a future focus than the court system, which typically decides whether there have been past breaches of legal rights.

The entire mediation process is confidential, which means that anything discussed remains private; the mediator may not be called to testify in subsequent court proceedings as to what was said during the mediation; nor may the parties be required to testify about their mediation session.  In short, mediations effectively enjoy the special legal status of settlement discussions.

Why choose mediation instead of litigation or other forms of ADR?

In litigation, direct communication between the parties rarely, if ever, occurs. Litigation involves very little client participation, and if there is any, it often comes very late in the process.  Typically, the attorneys develop the factual record, plead the case, and argue the applicable legal principles.  A judge and/or jury decides who wins and who loses, all of which is open to the public.  Yet this process does not normally lead to an adjudicated result -- it is widely accepted that that at least 90% to 95% of the lawsuits that are filed ultimately settle without a trial.  Unfortunately settlement typically occurs very late in the process – sometimes on the “courthouse steps” – after the parties have expended significant time, money and other resources.

Arbitration, another form of ADR, requires the parties to abide by the decision of an impartial third person who renders a decision after hearing each side’s arguments. Still arbitration takes the case out of the parties’ hands and places the ultimate decision in someone else’s grasp.  Arbitration is essentially private litigation; one party generally wins and one party loses.

Mediation allows the parties to fashion a process for achieving their own agreement that they will follow. When the parties are able to come to agreement through mediation, they can define a "win" for themselves. 

Why is mediation usually less expensive than litigation or arbitration?

Process efficiencies occur when parties are working together to resolve their dispute rather than fighting each other in a courtroom or in an arbitration proceeding.  One significant area of cost saving is in the area of “discovery” which is a legal term describing the process by which all relevant facts, information and evidence are uncovered prior to trying a lawsuit; the process consists of deposing witnesses, issuing subpoenas for documents and other information, and preparing expert analysis and reports.  The time and expense associated with the discovery can be significant.  Mediation allows the parties to limit discovery to the development of the information necessary to facilitate a meaningful mediation conference  This results in a considerable savings of time and expense (as compared to arbitration and litigation), but can also limit the amount of “opposition research” that can be done on the other party’s case. 

Are there any other advantages to mediation?

Mediation has many different advantages when contrasted with litigation and arbitration.  The comparative advantages and disadvantages among these types of dispute resolution mechanisms are summarized in the Table 1 below. (See next page).   An especially important benefit of mediation is that opposing parties have the opportunity to jointly choose a mediator or co-mediators whom they believe will help them attain a settlement as opposed to a randomly assigned judge or jury.  Further, if the parties are not satisfied with the mediation session, they may schedule another session at a different time, or they may simply walk away from the process.

Is mediation used only for settling lawsuit and business disputes?

No.  Mediation is a highly flexible technique that can be and is used to resolve almost any type of conflict.  In addition to all types of commercial and business disputes, mediation has proven a very effective tool when used in divorce and custody conflicts, as well as in domestic relations and family controversies.  Community associations and neighborhood justice centers have long relied on mediation to resolve conflicts between individuals and groups in living in proximity to one another.  Peer mediation has even been used in school settings.  Increasingly, government, large corporations, not-for-profit organizations and religious groups have trained their employees or members to internally utilize mediation techniques in workplace and other organizational disputes.   

Throughout the country court-mandated mediation programs have experienced a high success rate in resolving all kinds of civil lawsuits prior to trial, with a high level of satisfaction expressed by the parties participating in mediation, and a greater compliance rate with the agreed remedies. 

 

Table 1

 

ADVANTAGES OF MEDIATION

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Text Box:  
Mediation
Arbitration
Litigation
Control
Parties Negotiate & Determine Result
Arbitrator(s) Controls Outcome
Judges & Juries Control Outcome
Binding or Non-Binding
Non-binding unless parties reach agreement
Usually binding; no appeal
Binding, subject to appeal
Risk
Parties Agree on Mutually Acceptable Terms
Win - Lose
High Risk Jury Awards
Neutral or Decision maker
Parties Agree on Mediator
Parties Agree on Sole Arbitrator; Parties Don’t Pick Neutral Arbitrator
Decision maker is randomly assigned
Confidentiality
Private
Private
Public
Party Interaction
Collaborative Negotiation
Adversarial
Adversarial
Procedure
Informal / Flexible
Structured
Highly Structured Rules of Evidence and Procedure
Duration
Days
Months
Years
Cost
Least
More
Most
Scope of Discovery
Least
Less than Litigation
Most
Precedent Effect
Avoids setting a precedent
Avoids setting a precedent
Adverse result can establish future precedent
Remedy
Creative solutions involving any  business interest 
Limited to $$$ and other legal rights and remedies
Primarily $$$ and other legal rights and remedies
Impact on Parties
Can Preserve/Repair Existing Relationships
Often “Burns the Bridge”
“Burns the Bridge”
 

 

 

 

 

 

 

 

 

 

 

Are there different styles of mediation?

Yes.   There are three main mediation styles, typically classified as: facilitative, evaluative and transformative.  The style(s) your mediator regularly uses is important when considering whether a mediator is the right one for your particular case.  Most mediators use a combination of the three styles.  Some mediation training programs train their mediators to conduct the process using one style, while other programs train mediators to vary their approaches when the situation dictates that they must.

Facilitative mediation exists as a tool to encourage parties to present and discuss their positions and interests directly to the other party. When the mediator follows this approach, he is making sure that each side is heard and is understood by the other. The mediator asks questions and rephrases arguments such that both sides are clear on the issues to be settled. The mediator does not offer his own legal advice, nor does he predict an outcome if the parties were to be in court. The mediator’s role is to facilitate the process, but not inject his observations or judgments into the discussions and negotiations between the parties. This style requires the mediator to be creative and intuitive in order to keep the process running (making sure the discussions overcome impasses) until a settlement is reached.

Evaluative mediation allows the mediator to assist the negotiation process by focusing on the case’s value in litigation, offering his or her views on the merits of the case, and assessing an outcome if the case were to be adjudicated. This style presumes the mediator is capable of analyzing each side’s strengths and weaknesses. When engaged in evaluative mediation, the mediator forms his own judgments on the issues and potential settlement options and shares such opinions with each party.  His viewpoints on the merits of each side’s position are designed to influence the parties toward compromising on what is deemed to be a reasonable settlement result.  Evaluative mediation is more likely to come into play in the later stages of a mediation procedure and can resemble the role that a judge plays in a settlement conference. This style is most appropriate when the mediator can confirm that both parties base their assessments of the damages on essentially the same discovered evidence and agree on the applicable case or statutory law.

Transformative mediation is primarily concerned with empowering the parties to manage their own conflicts and better recognize the concerns and positions of the other side.  The goal during transformative mediation is to fundamentally transform the parties’ and/or their relationship so that the parties are empowered to uncover their own solution.   While achieving a resolution of a particular dispute is important, it is secondary to the ultimate objective of changing how the parties deal with conflict and with one another.  It can be said that transformative mediation is more process-oriented, with a longer term perspective, as compared to evaluative mediation which is more result oriented and focused on how to resolve the specific dispute at hand.

No matter what style the mediator follows -- and there is a fine line between the facilitative and evaluative approaches -- the mediator’s role is help the parties reach a negotiated solution themselves, as opposed to allowing a judge, jury or arbitrator impose a decision upon them.

Co-mediation is sometimes referred to as a style of mediation, but actually describes a technique when two individual mediators are paired together for a mediation in which some combination of legal, financial, technical and/or scientific expertise may be particularly helpful in facilitating agreement.  Co-mediation is often employed in suits involving technical issues, in construction conflicts or professional liability disputes.  For example, in a complex construction dispute, the parties may choose a mediator who possesses knowledge and skill in the construction industry, such as a former construction manager, an architect or a mechanical engineer, along with an experienced mediator with known facilitative skills.  In another example, a professional defendant may be more willing to resolve a case if a fellow professional is one of the mediators.  Another co-mediation "neutral" combination could be a lawyer from the plaintiff’s bar and a lawyer from the defense bar working together as neutrals to resolve the suit.

In addition to mediation training and style, what else might parties want to know before choosing a mediator?

Aside from a mediator’s basic approach, there are certain subtle qualities that many believe are the true selling points of a mediator.  A mediator can effectively assume many diverse roles in a mediation – moderator, referee, coach, empathetic listener, psychologist, negotiator (in a passive sense), philosopher, diplomat, deal maker, humorist (to break tense moments) a cheerleader (for a successful outcome) and project manager (in the design and execution of a customized mediation procedure).

A mediator must maintain emotional distance from the issues, yet a mediator should be able to perceive various forms of non-verbal communication to better understand the parties underlying feelings and motivations.   A mediator should be able to intuitively “read” people such that he can perceive the proper moments during the mediation where he should suggest how the parties can begin to move closer together.  A mediator should also be able to manage parties’ hostilities in a way that allows them to vent their frustrations so that they will be able to focus on their true desires once they have released their surface tensions.

Parties should consider a mediator’s success rate, and if possible, whether the mediator has mediated disputes of the same character as the instant case.  It should be noted, however, that everything in the mediation session, including whether, is settled or not, is treated as confidential information.  Although finding references for your potential mediator may be difficult, since parties are entitled to confidentiality, it is important to acquaint yourself with the mediator’s reputation.

What is the best background for a mediator to have?

While the majority of mediators are lawyers and judges, the professional backgrounds of commercial mediators are as diverse as the issues presented to them; some are accountants, some are engineers, some may be contract administrators.  Certain specialized mediators, who have detailed industry experience in the dispute sectors in which they have chosen to practice, can be very effective in helping achieve resolution.  (For example, a retired construction manager in a construction project dispute or a health professional in a mediated medical malpractice claim.)

Parties should not choose a mediator simply because he or she may also be highly regarded as an outstanding attorney and skillful advocate.  A trial attorney skilled in spoken and written argument (as well as the use evidence and a body of abstract legal principals) to persuade a judge or jury of the correctness of his or her client’s position may not be equally effective in the role of a neutral third party who can help opposing parties unlock areas of parallel interests and negotiate a win-win solution to their perceived differences.

One recent article has suggested that attorneys with significant transactional experience and “deal making” skills can be especially effective participants in the mediation process, either as mediators or in representing parties.

While many retired judges have become highly effective mediators, success as a jurist does not guarantee success as a mediator.  Some judges have been criticized as having an overly evaluative style that stresses legal rights as opposed to a party’s underlying business or other interests.

There can be no set formula for choosing a mediator, and different dispute circumstances may call for different types of mediators and/or different styles of mediation.  Mediation is more of an art than a science, and just as artists work in many different mediums and styles, so do mediators.  There is no single best format or personality for either an artist or a mediator.

What role do attorneys play at mediation?

A meditation conference/session may be conducted in many and varying ways. While attorneys aren’t necessarily required in mediation, they are usually present. Generally, pre-conference submissions should be prepared for the mediator including statements of fact and position, theories of liability, expert reports and status of any concurrent litigation. An attorney should also prepare his client for the mediation. The client should be made aware that he may participate in the session, may ask questions of the mediator and other parties, and may vent his frustrations or exclaim his legal arguments.

An attorney should remind his client to disclose sensitive information only at certain points during the mediation session. For example, each lawyer typically will have the opportunity to make an opening statement, where legal arguments and personal interests may be expounded.  Afterwards, the mediator or the parties may request a caucus, a private meeting with the mediator, where a party may make offers or disclose information to the mediator which the party does not want the opposing party to hear. Exhibits, legal documents, charts and case law to support the party’s case may be used at any time during mediation to influence the other party, should the lawyer and his client choose to utilize them.  Parties to mediation should concentrate their persuasive efforts on the opposing party rather than the mediator.

If the parties achieve a complete or partial resolution at the end of a mediation session, the mediator and the attorneys will generally prepare a simple written agreement outlining the basic terms upon which the parties have agreed.  The agreement will then be presented to the parties for signature, and it represents a binding contract which can be enforced in a court of law.  In more complex disputes, especially matters which are pending in litigation, an additional more detailed settlement agreement will be prepared by the parties’ attorneys and exchanged within a day or two after the successful conclusion of the mediation session.

Conclusion 

For the reasons outlined above, the use of mediation to resolve business and commercial disputes has grown steadily in recent years.  Mediation is increasingly viewed by many business managers, corporate attorneys and outside counsel as the ADR method of choice.   Over 4,000 of the largest U.S. corporations have now signed a standing commitment to attempt to utilize ADR methods, before commencing full-scale litigation in the event a dispute arises with another signatory of the pledge.  Further, over 1,500 law firms have committed to explore the use of ADR with their clients contemplating litigation. 

The days are long past when aggressive litigators dismissed the suggestion of mediation or other forms of ADR as a “sign of weakness.”  Today, the suggestion of mediation can only be viewed as the sign of a sophisticated, creative manager or attorney who is keenly attuned to the best financial and operating interests of his or her business clients.   -END-

 

  Copyright © 2007 by Accord ADR Services .  All rights reserved.  "ACCORD" is a service mark of Accord ADR Services.

 


Home

Mediator
Profile

Areas of
Expertise

Mediation
FAQs

 Articles

Mediation
Clauses

Links

Contact Us

Comments