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.
