By Dan Brookhart
As seen in In Brief, a quarterly publication of the Lancaster Bar Association – December 2013
The last decade or so has seen considerable growth in the use of mediation as a means of resolving disputes. In the area of civil litigation, mediation is utilized, or at least given serious consideration, in most cases that wind their way through the civil justice system. Long the purview of civil litigators on the eve of trial, mediation is increasingly being used earlier in the process by attorneys of every stripe in the resolution of a wide array of disputes.
While a proven and effective means of dispute resolution, there are somewhat obvious but sometimes overlooked benefits of mediation which inure to attorney and client alike. What follows is a look at some of these benefits from the perspective of a full time mediator with a substantial background in civil litigation.
Having a Say
One of the distinguishing hallmarks of mediation (as compared to trial or arbitration) is that mediation provides the opportunity for the parties to play an integral role in fashioning resolution. Mediation is an intentional conversation about making informed decisions. And the decision making authority is vested with the parties as opposed to a judge, jury or arbitrator. This is a powerful, almost cathartic, aspect of mediation for the parties; that the ones who have lived the experience and have the most invested own the decision making authority.
By affording the parties a true say in the outcome, mediation provides an opportunity at real closure. The elusive concept of closure is often important to the parties in civil litigation. The opportunity for true closure is enhanced when the parties are directly involved in the outcome. While the result may not be on ideal terms, it is at least a result fashioned and controlled by the parties.
While the nonbinding nature of mediation usually evokes a “no harm in trying” mentality, don’t underestimate the unique opportunity of your client having an authentic say in the outcome.
It’s All about Relationships
In many civil cases the only relationship that exists between the parties is the litigation itself. However, in some instances the parties to a dispute have a prior or ongoing relationship that should inform the process. For instance, a business relationship (particularly a family business) or an employment relationship are examples where preservation of the ongoing relationship is important. Mediation can provide an opportunity to preserve those relationships.
Litigation by its very nature is not designed to foster good will among the parties. Protracted litigation often has a polarizing effect which is not conducive to maintaining ongoing relationships. (I guess that’s putting it charitably!) Mediation, particularly early in the process, can lead to resolution of a dispute before it spins out of control and leaves significant collateral damage in its wake. Mediation is more focused on seeing the conflict as a problem to be solved rather than a battle to be won.
This is not at all meant to be disparaging of litigation. Many disputes need the full machinery of the litigation process, including complete discovery and trial, to arrive at a conclusion. However, where preserving a relationship is important, business or otherwise, mediation can be an effective alternative.
Time is Money
Not to be lost in the possible benefits of mediation are the practical considerations of time and money. To be sure, there are cases that merit the full arsenal of civil litigation. Likewise there are those disputes where mediation would be premature without each party engaging in full discovery so as to adequately assess the merits of each position.
However, where the issues are fairly crystalized from the outset there may be real value in mediating early before each party traverses down the litigation trail of tears. From a perch of neutrality, a mediator can help chart the litigation path forward for the parties in terms of time and money. Moreover, where the parties require certain information as a prerequisite to a meaningful mediation, the mediator can help facilitate the exchange of that information. After all, in all probability, it will be subject to discovery down the road. Where avoiding the expenditure of undue time and dollars are an important consideration to the parties, early mediation can have real benefits and should be included in the consideration of dispute resolution opportunities.
Thinking Outside the Box
Mediation can provide opportunity for creative solutions that often do not exist in an arbitration or trial setting. Within the bounds of legality, the parties are free to fashion a solution which meets their individual and collective objectives. This is particularly true when the parties cannot come to terms on a monetary amount. For instance, take a business dispute where the parties cannot agree on a dollar figure but have an interest in continuing a business relationship. The parties might agree on a volume commitment of product or services to bridge the monetary gap.
It is incumbent upon the mediator to seek to understand the underlying interests of the parties so that creative solutions can be employed when impasse strikes. Unlike most trials or arbitrations, mediation allows solutions outside the exchange of currency. Sometimes it can be an apology or permitting a party to tell their story in a safe structured environment. The options in thinking outside the box are plentiful. Moreover, by state statute (42 Pa.C.S.A. sec. 5949) all mediation communications are confidential and inadmissible. Thus, the free exchange of settlement options can be explored without fear of compromising your position.
As those experienced with mediation are well aware, the private caucus involving the individual parties, counsel and the mediator, is where much of the spade work leading to settlement is undertaken.
These private caucuses can provide an excellent opportunity for the attorney and client to “test drive” the case in a safe and confidential environment. If circumstances dictate, take advantage of the opportunity to engage the mediator in a discussion of possible outcomes at trial if settlement cannot be achieved. A well prepared neutral third party can be helpful in assessing strengths and weaknesses of a case and can operate as the “agent of reality” to the client if circumstances warrant.
While the goal of mediation may be settlement, a candid discussion of the merits of the case can arm the parties with necessary information to at least make informed decisions.
Litigation, arbitration and trials will always have an important place in the resolution of disputes. However, with the increase in the use of mediation the practitioner should be mindful of the possible benefits of the process when deciding to utilize mediation as a dispute resolution device. Although the above does not constitute an exhaustive list, the opportunities provided by mediation are often not available at trial or arbitration and, in the right situation, can make it an optimal choice for dispute resolution.
Mediation as Opportunity