By: Barry Dorans
There are four primary methods for resolving disputes in the American legal system: (1) trial by judge; (2) trial by jury; (3) arbitration; and (4) mediation. Of these, mediation is probably the least understood.
So, what is mediation? Mediation is a process in which the two parties exchange demands and offers in a back and forth manner with the assistance of a third party neutral in an attempt to reach a settlement of the dispute. When I first started practicing, mediations were nearly unheard of and instead the attorneys for each side would exchange demands and offers until the case settled. Now it is much more common to use a third party to preside over the mediation.
What is the role of the mediator? Clients are often confused and think that a mediator’s job is to obtain a “fair” settlement. Actually, the mediator’s job is to try and reach a resolution. If a plaintiff asked for $1,000,000 and a defendant wanted to pay $1, any settlement between $1,000,000 and $1 would be a good result for the mediator since their job is to get the matter resolved.
How does the mediation progress? In general, the mediation progresses by having a meeting with all of the parties and the mediator, and each side states their position. Thereafter, they separate into two separate rooms and the mediator meets first with one side, then the other, and continues shuffling back and forth until a resolution is achieved, or the mediation process ends. It is important to remember that the mediation is process and that at times it seems that it is progressing at a snail’s pace. I suggest you bring a good book since it is not unusual that a mediator seems to spend a large amount of time talking to the other side and yet when the mediator talks to you, it seems like it moves fairly quickly. There are many times when parties get discouraged and want to leave, but a good mediator will convince them to stay and continue to let the process work itself out.
Why should I choose mediation? Of the four methods listed above, mediation is the only method in which a party has an actual role in constructing the eventual resolution. In a trial by judge, the judge makes the determination of who wins or loses. In a jury trial, the jury makes that determination. In arbitration, the arbitrator makes the decision. In a mediation, the only decision that the client is forced to accept is one that they agree to. If the client decides that the offer or demand from the other side is unreasonable and they do not wish to accept, the mediation ends and both parties are free to pursue another method of dispute resolution. In my experience, so long as the parties and their counsel are fairly reasonable, mediation typically results in an agreement that all side can live with.
