WHAT IS MEDIATION?
Mediation is a voluntary, non-binding process using a neutral third party to guide the parties toward a mutually beneficial resolution of their dispute. Unlike an arbitrator, who can impose a decision, the mediator helps the parties to decide for themselves whether to settle and on what terms. The mediator acts as a catalyst for the process, helping parties reach agreement by identifying issues, exploring possible bases for agreement and the consequences of not settling and encouraging each party to accommodate the interests of the other parties.
BENEFITS OF MEDIATION
Mediation has several advantages, particularly when utilized early in the life of a lawsuit:
1. Because more than 90% of all cases settle, early mediation enables management to evaluate a case early and encourages the early resolution of the case before time, energy and money are expended and before litigation takes on a life of its own.
2. Mediation is voluntary; nothing happens without the parties' consent. The parties retain a high degree of control. Each party retains the right to withdraw at any time.
3. Mediation does not involve a decision imposed by a judge or an arbitrator. There is no finding or ruling which creates leverage for any party.
4. All communications in mediation are privileged and cannot be used as evidence. The private communications between plaintiff and mediator are confidential; the parties control what is disclosed to the mediator and whether and to what extent matters disclosed to the mediator may be disclosed to the other side.
5. Mediation allows for creative solutions to the parties' dispute, often allowing all parties to come away from the mediation process with benefits unavailable through litigation or arbitration.
6. The use of a mediator promotes reasonable dialogue by taking the bravado and posturing out of the settlement discussions.
7. In the less than 10% of cases that do not settle in the mediation process, the parties benefit from refined discovery, early witness evaluation and streamlined trial preparation reducing litigation costs significantly.
MEDIATION BENEFITS THE ATTORNEY
Mediation is consistent with the goals and economics of a plaintiff's attorney's practice. The earlier a case is resolved the earlier the plaintiff and plaintiff's counsel gets compensated. Mediation provides benefits to defense counsel as well. Suggesting mediation to the defense client evidences a commitment to take a cost-effective approach to solve the client's problem and demonstrates to the client that the attorney appreciates his or her ethical and professional responsibilities. This will generate good public relations through providing defense counsel with a reputation as a "problem solver" who is committed to producing cost-effective results through mediation which, in turn, will earn defense counsel more files and new clients.
MEDIATION COMPARED WITH ARBITRATION
Arbitration involves selection of a third party who acts as a decision maker whose decision can, or in cases of binding arbitration, must be accepted by the parties. Typically, the arbitrator has a hearing in which the parties present evidence after which the arbitrator hands down an award. Arbitration can be a beneficial tool for resolving disputes if the parties insist on having a third party come up with a solution for them. However, like litigation, arbitration is an adversarial and adjudicative process. The parties relinquish all control and, because they are not active participants in the decision-making process as they are in mediation, they may be dissatisfied with the result.
MEDIATION COMPARED WITH
COURT-SPONSORED SETTLEMENT CONFERENCES
In a court-sponsored settlement conference, typically the attorneys informally present their cases to a judge or panel of impartial third parties, usually trial lawyers, who render opinions for the parties to use. Many cases do settle through court-sponsored settlement conferences. One disadvantage is the fact that court-sponsored settlement conferences usually occur late in the process shortly before trial and after the parties have invested much of themselves and their money in positions from which they cannot easily back away. Another disadvantage is that the judge's "evaluation" of the case will give leverage to one side and make that side more intransigent and the other side more skeptical of the process. Instead of moving the litigants toward common ground, the judge's evaluation can drive them farther apart.
In the United States, about 80% of the cases in mediation settle on the first day, and the additional 10% within a month of the initial mediation session, a low cost, high benefit investment for all involved.
|Wakeen & Associates Mediation Services
600 University Street
Seattle, WA 98101
Phone: (206) 292-8300
Fax: (206) 292-8399