Mediation - Good idea or Bad idea?
I confess that I am a big fan of the mediation process. Many times mediation represents the last chance the parties have to make their own decision, and resolve the case. A third party, unrelated to the case or the parties, helps the parties move toward a resolution.
Most Minnesota state courts require the parties in a civil case to participate in some sort of alternative dispute resolution (ADR) process. The "alternative" in ADR mean that the parties try to resolve their dispute (the case) without going through a full trial. The parties agree to one of a variety of ADR methods. While the most common ADR methods are Mediation and Arbitration, there exists many variations of these two basic methods. Mediation can best be described as assisted negotiations.
The bottom line for me is that it is far better for parties to make their own decisions than let a third party (judge, jury or arbitrator) who knows nothing about the parties, and cares nothing about the results, to make the decision for the parties. If the parties can not agree on their own, then mediation is a good alternative. For in the end, the parties get to make the decisions to settle or not to settle.
In a trial a client can have truth and justice on their side, and still end up with a bad result. That is the nature of litigation. You've got a 50-50 chance to win ("It's a crap shoot,") I tell clients. Max Kennerly has an excellent post on this subject. But in life, when others are allowed to make important decisions for you, sometimes you don't like the result. Does this mean a party should settle every claim against them no matter what? NO! Some cases need to be tried, and the system needs to be trusted.
I think if attorneys were clear with their client's about the litigation process, even more cases would be settled. When a client is "right," and the facts support the client, it is sometimes difficult to negotiate a settlement where the client does not receive everything they think they are entitled to. But being "right" that does not make settlement to wrong business decision.
Victoria Pynchon's excellent blog, Settle It Now has a very thoughtful article about opponents in a case meeting and negotiating eye-to-eye. In other words, the suggestion is that in a mediation the opposing parties should not be separated. In my experience it is not the lawyers that don't want to meet face to face; it is the clients. I am often asked, "I wont have to see the other side will I?" So, I agree with the thesis of the post, but clients do not alway see the wisdom of this approach.
I will discuss arbitration in a later post.
I saw something about your blog going live on Twitter and came to check it out - looks really nice! I love the way you speak to your readers and the set-up is great. Take care!
Yes, blog looks great; welcome!
And thanks for the mention.
Client's DON'T always see it that way but yesterday, ONCE AGAIN, small talk between parties who didn't want to see each other, broke a genuine impasse following the rejection of a mediator's proposal that was meant to break the impasse. I called the parties together "just to say goodbye and thank the other side for the good faith efforts" and literally within five minutes the case settled.
If you hire me, why wouldn't you let me use my considerable conflict resolution skills to help you achieve WITH ME what you can't achieve WITHOUT ME? (and if you can achieve it without me, why bother hiring me?)
Really. What do litigators have to lose? As a wise old friend once said to me, "you can't save your face and your backside at the same time."
I'll keep the conversation with Kennerly going as well. It's been a great exchange between mediator and trial lawyer and one one that has helped me help my clients help their clients help themselves!
We're all in this together! That's the GOOD part!
Thank you for your comments Vickie. That is a great story. I know you have had particapants to a mediation that refuse to even leave their room until they receive assurance that the other party has left. I have. So the question is, how do you get parties to meet - even for a short time - when they insist on never meeting the other party. I think the premise is a good one, but human nature sometimes drives people to resist. I appreciate Max's comments, but I tend to believe that when the parties meet, one of two things will happen: They will end up further apart, or they will start moving toward a better understanding and maybe a settlement.
Gavin