It wasn’t long ago that if a dispute could not be resolved through direct negotiation, the next step was the traditional court legal system. At that time our courts were five to ten years backlogged and by the time the case was tried, memories were faded, witnesses were dead, and the passion was often gone from the dispute. Arbitration became a method of alternative dispute resolution. However, over the past 20 years there has been a paradigm shift in conflict resolution methodology.
Today courts are mandated to schedule most trials within one year of the filing of the complaint, and arbitration is often as expensive and elaborate as a court trial. However, more paradoxical is the consistent use of mediation as the preferable method of dispute resolution in almost every case today.
Conflict between people is a natural dynamic phenomenon and will always exist as long as there are two incompatible forces and passion. Conflicts can be unilateral when only one side has a complaint, such as a disgruntled employee dispute, an injured construction worker claim, an Americans with Disabilities Act claim, or a breach of contract claim when a client fails to pay for services rendered. Unilateral conflicts become bilateral conflicts when a cross claim is asserted, such as a contention that services rendered did not comply with the standard of care or in a partnership dispute, where both partners have different ideas about how the partnership should be dissolved. A conflict becomes multilateral when numerous people and businesses are involved, such as a situation where the owner of a home sues the developer, who in turn sues the architect and the general contractor, the engineers, the subcontractors, the manufacturers, and the suppliers of materials.
The Foothold of Mediation
So what is it about mediation that has gained such a foothold in the dispute resolution repertoire today? The principle behind mediation is to provide a process for people to take the chaotic struggle of a conflict along with the assistance of a neutral third party to develop a process of communication towards resolution in less time and expense than a trial or arbitration. The mediation process assists in defining the facts, issues, and feelings, and with managing communication about the conflict, ultimately leading to a better understanding of each side’s point of view. No matter how many people, businesses, or issues are involved, mediation is a dispute resolution method that is now almost always the first step taken when a dispute cannot be resolved through direct negotiation. The benefits of using mediation include:
Thirty years ago, when the word mediation was mentioned, people thought it was akin to meditation, and it was not thought of as a method of dispute resolution appropriate for commercial cases. However, today mediation is used in almost all cases, including the most complex commercial cases. Many courts now mandate mediation prior to setting a trial date for the case. The Department of Justice is using mediation to resolve many of the Americans with Disabilities Act complaints. The Equal Opportunity Employment Commission is mediating most of the employment discrimination complaints filed. Many contracts, including the AIA Standard Form Contracts, mandate mediation as the first step in the dispute resolution process. Even some insurance companies give rebates on deductibles if the insured agree to participate in a mediation to resolve disputes.
Selection of the appropriate mediator to preside over the mediation is an important step. There has been a lot of criticism of contracts that mandate a mediator be selected from one provider because of the potential for bias. But, today there are numerous organizational and individual providers of mediation services. In fact, the paradigm shift in the use of mediation to resolve disputes has also encouraged a proliferation of judges retiring to become mediators, lawyers providing mediation services, and a plethora of people from other professions, including architects, providing mediation services. To be an informed consumer of mediation services, you need to first be aware that there are no regulations or licensing procedures for mediators. Secondly, you should ask questions of potential mediators regarding their background, education and training in mediation, their area of expertise, their style of mediation (facilitate communications or evaluate the case), questions about potential bias (have they previously mediated with the parties, attorneys, etc.), and other questions, such as how much do they charge for their services.
After a mediator is agreed upon, you need to make sure that the principal parties and any person whose approval is needed for resolution are invited and agree to attend the mediation session. If you do not have the decision makers at the mediation table, a resolution most likely cannot be reached. Additionally, prior to the mediation session, you may want to agree with the other parties that there will be an exchange of documents or other information to make the mediation more meaningful. An exchange of briefs summarizing the facts and positions of each side prior to the mediation can be helpful in understanding each point of view. Any particularly confidential information can be provided to the mediator under separate cover or at the mediation during the private caucus.
There are many ways of structuring the mediation process. The mediator will probably suggest a process of communication, such as who goes first and for how long. It is important to understand that the basic premise of mediation is that it is a voluntary process and how the mediation is structured is up to the parties involved. Generally the mediation will begin with a joint session attended by all participants. The mediator will usually give a short introduction, followed by the opportunity for each party to give a presentation and discussion. Private confidential caucuses often follow the joint session between the mediator and each party. In caucus, you can discuss information that may assist in working toward a resolution but which you would prefer not to disclose in direct negotiations. The mediator will play help all parties gain the most balanced possible evaluation of the matter. Finally, the caucuses provide an opportunity to assess realistic options for resolution, without endangering any party’s negotiating posture. Caucusing will generally continue until an option has been developed that all sides feel is acceptable. If a resolution is reached, it is advisable to draft and execute a memorandum stating the key terms of the settlement. If a resolution is not reached in the initial mediation session, the parties may elect to authorize follow-up, which can consist of telephone caucusing, further investigation, and/or an additional mediation session.
Ensuring a successful mediation requires adequate preparation. Gather whatever information you can and be prepared to present the facts in a positive manner, utilizing whatever presentation you believe most effective, including charts, audio-visual, and oral presentation. Always talk on a level that the other party can understand. Develop a negotiation strategy that has flexibility to adjust to changing conditions. My favorite negotiation strategy tips are:
In preparing to negotiate you need to marshal the facts and the law, but you should also develop a strategy with a thorough analysis of the interpersonal dynamics that will motivate the actions in the negotiation session. People think, comprehend, and conceptualize differently, which leads to variations in needs, values, motives, purposes, goals, attitudes, and resulting behavior. These fundamental differences in the face of a conflict impact the dynamics of the negotiations and create barriers to conflict resolution. The struggle within individuals to reach an understanding of their needs, wants, and how to communicate or behave is grounded in their personal image of themselves. Are they confident, unsure, prepared, or do they feel that they lack power or position? Understanding the interpersonal dynamics of all of the players in the mediation and developing a strategy that shows you are not trying to assert power over the person will assist dramatically in reaching a resolution.
Success of the mediation is measured by attaining some or all of the goals set by all of the participants. Sometimes mediation takes several sessions to reach a complete resolution. Sometimes a change of locations after a session will cultivate a new perspective and assist in the resolution. Even when dealing with a corporation, a mediation is really dealing with individuals with feelings, goals, and values.
Clear contract drafting and conscientious communications will avoid many disputes. Early identification of potential disputes and communication about those disputes, along with prompt investigation, development of solutions quickly, effectively, and with common sense can go a long way. But for those disputes where direct negotiations are not successful, mediation is a proven dispute resolution methodology that will continue to be used with greater precision. This is not to say that the traditional legal system will be abandoned; it will be used when precedent is required and when the legal advocates are unable to resolve the dispute through mediation.
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