I like mediation for resolution of many types of disputes because, in mediation, the first thing the parties must do is agree. They have to agree on the mediator. There are many mediators and mediator types out there. Some mediators are former judges who take no nonsense and often suggest a settlement based on their judicial experience. Some will stridently push the parties into settlement. Other mediators are lawyers famous for their litigation prowess who can tell the parties which fact patterns and legal arguments are winners and which are losers. Still other mediators, and my favorite type of mediators, are peacemakers, either lawyers or non-lawyers with experience in the subject area of the dispute, and also trained and committed to facilitating agreement.
I also like mediation because success rates are high, usually something upward of 80%. This means that mediation is a real, practical dispute resolution technique, separate and apart from litigation, and not just another step toward the win at trial.
All that being said, my five best reasons to use mediation include options for parties unavailable in court. In mediation, the parties can:
1. avoid discovery, depositions, motions, cross-examination, rules of evidence and other ordeals of the judicial system;
2. speak their truth to the opposition, uninterrupted;
3. formulate their own settlement terms, potentially finding creative solutions that don’t typically find their way in litigation settlements or judgments;
4. timely resolve their dispute; and
5. potentially repair their relationship with the opposition.
I’m going to address #1 more in a later post, but suffice it to say here that by avoiding discovery, depositions, motions, cross-examination, rules of evidence and the rest of the process and procure of litigation, parties to a dispute save time, money, inconvenience, aggravation and public scrutiny.
In litigation, parties don’t get to speak their truth because the rules of evidence, examination and cross-examination require that they’re constantly silenced, challenged and interrupted. Some evidence will never make it into the case at all. I’m not arguing that evidence excluded by the rules of evidence should not be excluded from court. I’m only saying that it leaves the parties feeling like they weren’t allowed to tell their story and that can be more important for settlement, even if it’s not as important in litigation. An example of lost evidence is that excluded by the Dead Man’s Act. The Dead Man’s Act prohibits a party from testifying about communications or transactions with a deceased person. While there are very good reasons for excluding evidence about deceased people, to avoid fraud and promote fairness, it means that communications between parties and a deceased person that matter a lot to the litigant proponents of the evidence will not become a part of the story of the case. Whether he or she wins or loses, the litigant will never be able to explain some reasons for their position or their actions. In mediation, however, the information excluded in court can become part of the story. The evidence won’t be used to determine truth from fiction or right from wrong, in court under the law, but the reveal during a mediation session might mean something to the party telling it and the opposing party hearing it, if only for understanding or closure.
Another useful feature of mediation is in the crafting of the settlement. In litigation, the court’s decision or a court approved settlement usually results in a judgment that gives money or property to one or the other, or maybe part to each. In mediation, money or property can be settled upon, but other valuable items or actions can be included in the settlement. One common element of a mediation settlement is the good old-fashioned apology. A lot of people sue on principle and feel dissatisfied even when they win because the other side smugly maintained righteousness. An apology can mean a lot to aggrieved family members, neighbors or employees in cases where relationships more than money are involved. Apologies can be harder to make or accept in litigation after time consuming and often grueling discovery and depositions, and testimony and cross examination at trial.
If an apology won’t bring the parties to a peaceful, satisfying settlement, future actions may. A mediation settlement can include agreements to do or refrain from doing something to comfort the aggrieved party or ensure the injury won’t happen to anyone else again. The settlement agreement is a contract, so the doing or not doing would be enforceable. Examples of this type of settlement include an agreement to add a safety feature to a product, better vetting of agents or employees, or an agreement to recommend or honor a long-time employee who was let go.
In mediation, without filing and service and motions and discovery and waiting for a trial date, the settlement can come as quickly as the day of the session. If the settlement does not happen at the first mediation session, subsequent mediations can be scheduled, but often after all the stories and been told and arguments argued, settlement can be achieved over the phone or email. Many mediators will leave themselves open for future facilitation of communications and settlement terms.
If all the above isn’t enough to choose mediation, perhaps the chance at repairing the relationship will do it. Litigation has no mechanism for this, but mediation does. In mediation, the parties get to speak their piece, tell their story, obtain closure, and all of this in a private, comfortable, open environment. They can obtain apologies and promises of better for the future. While it’s not always possible, the mediation process can heal old wounds and leave the parties open to future communication and the hope of repairing their relationship in the future.