In our last blog post, the first in this two-part post about the case for early mediation, we discussed traditional, post-discovery mediation and its role as essentially an alternative to trial. In this post, we look at the kind of mediation we are proponents of – early mediation (we call ours “3-D Mediation”) – used either as an alternative to litigation entirely or used very early in the litigation process.
A Different, Efficient, Logical Approach – Early Mediation
Let’s consider approaching this mediation differently, starting with doing it at an earlier point in the life of the dispute: at the beginning, nearly two years earlier than traditional mediation. Instead of an all-day event with that inherent pressure to settle at the end, imagine a mediation process that consisted of three shorter sessions, each with a clear purpose and agenda. Think about if some of these features make sense and would be appealing to you in your dispute:
The parties engage in the mediation before any complaint has been filed, before the court system is involved and before the civil procedure process is initiated.
The mediation takes place over three shorter sessions (approximately 1.5 to 2 hours each), each designed for a purpose and with a clear agenda.
This a completely confidential process and there has been no public (court) filing.
The parties, assisted by the mediator and advised by their lawyers (if they have lawyers), are the decision makers and have control over the outcome.
The parties can control the tempo and the scheduling of the mediation sessions to fit into their needs and personal schedules.
Any necessary exchange of relevant information needed to resolve the matter through this structured negotiation is discussed, mutually decided upon in the first mediation session, and exchanged before the second session.
Ample opportunity for considering each party’s needs and interests, including giving each party the chance to be heard and to listen to the other party (i.e. “getting your day in court”) in a structured, controlled setting is given to the parties in the second (and if needed additional) mediation session.
The parties may bring into the mediation process any expert opinion assistance they need to resolve the matter. Unlike litigation, they agree to hire one neutral, independent expert jointly, they share the cost and have the value of an expert resource available to them throughout the mediation.
The agreed upon options for resolution, discussed and decided upon in the third mediation session, are reduced to a written resolution agreement.
This type of mediation process runs only as long as the parties need it to run and is faster, less expensive, more efficient, more creative in developing solutions and less draining upon the parties’ resources, time, energies and emotions than litigation or arbitration.
In both scenarios, the traditional style of mediation and the early mediation, the case gets resolved through mediation. The difference is that in the traditional litigation-based setting, the mediation settlement comes by default rather than by design, after two years of preparing for a trial that never happened. In early mediation, the resolution is reached by intention and design because the parties and the lawyers pursue a negotiated resolution from the outset and design the process for that purpose.
The other differences are very significant and provide real value for the clients:
Resolution is reached in a much shorter time;
The cost of this early mediation is drastically less that the cost of two years of litigation followed by mediation;
The draining of the parties’ resources, energies and emotions is prevented;
The entire matter remains confidential;
The parties can control the time, tempo, scheduling and to a good degree, focus of the process;
The parties keep control over determining the final outcome;
The process gives the mediator, parties and lawyers the flexibility to get creative with the options for resolving the matter;
The parties do get their “day in court” in the sense that they will have the opportunity to say what they need to say and have the other side hear it. (In most litigation, the parties never really get their day in court because over 97% of the cases that are filed with the courts settle and never go to trial, but they settle very late in the process.”).
Let’s revisit the first two questions asked in part one of this two-part blog post.
How quickly do you want to get your dispute resolved?
Is most of the relevant information needed to resolve your dispute the kind that is (a) freely available or ascertainable and (b) are the parties willing and able to exchange it voluntarily and without delays?
If your answers to #1 is as soon as possible and within 6 months, and your responses to question #2 are yes and yes, the logic, the common sense and the clear value of early mediation are convincing.
That is why we at Dispute Resolution Counsel, LLC offer our brand of early mediation – 3-D Mediation.
Michael A. Zeytoonian is the Founding Member and Director of Dispute Resolution Counsel, LLC and is a lawyer, mediator and ombudsman. He is formerly a partner and now Of Counsel at Hutchings, Barsamian, Mandelcorn & Zeytoonian, LLP, in Wellesley Hills, MA. He specializes in employment law, business law, special education… MORE >
This essay is inspired by Sigmund Freud’s persuasive, imaginative and enigmatic writings on mental processes and their meanings. He was the founder of psychoanalysis and is psychology's most famous author....