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To Mediate, Or Not?

 

To Mediate, Or Not?

Posted by Legal Staff in Law Blog for California and Texas, Law Questions by Texas Cities, Mediation Law in Texas, Texas Law Questions 21 Apr 2014

The influx court-ordered mediation programs over the last decade may seem novel or new to many practitioners. However, it is not. The notion of submitting grievances to a “neutral” third party is not new. Historians have tracked the uses of mediation all the way back to Biblical times. The short vignette will demonstrate how the historical use of mediation is still viable for our modern world.

Before Christ was even born, Phoenician Commerce, Ancient Greece, and the Roman law saw the use of mediation as an important tool in resolving disputes. You may think that the evolution of mediation is only found in European society. You would be wrong. For example, China has utilized mediation for centuries to resolve disputes. By some estimates, the current People’s mediation committee resolves over 7 million disputes per year.

So now you may wonder whether mediation is an out-of-date concept. I want to encourage you that this “old” concept still is relevant for today. Here are ten modern questions asked by most parties when considering whether to use mediation for their dispute.

Will someone finally listen to my side?

Research overwhelmingly supports the proposition that people want to be heard. Websites galore, curriculum, handbooks, and all other manners of communication currently grace the shelves of our local bookstores supporting this simple proposition. A dispute is no different. Each side wants to vent. Each side wants the opportunity to simply be heard by someone who will not judge them. Consider mediation as a mechanism that can provide a simple opportunity to have an audience to hear you!

How will mediation help me deal with these intense feelings I have toward the other party?

Mediation allows the parties to relieve the yoke of frustration, anger, regret, fear, and other emotions that weigh them down in the muck of a dispute. The Greeks described catharsis as being the ability to purge emotions resulting in a renewal and restoration. Mediation offers the parties a cathartic process, where the parties have the ability to purge unwanted emotions and hopefully restore their emotions to an even keel.

Do you like to be in control?

Imagine a situation where a stranger or group of strangers decides the outcome of your dispute without listening to everything you want to say or show to them. This is the reality of our modern court system. Judges and juries decide cases and remove all control from the parties. In mediation, the parties decide what gets said, what documents are shown, and maintain the ability to actually retain control of their dispute.

I hate paying my lawyer. Is mediation cheaper?

One of the most common complaints by clients are “my lawyer is too expensive.” A typical case can often cost $25K-$50K in pre-trial costs and fees associated with filing the lawsuit, propounding written discovery, taking depositions, and using experts. An actual trial can result in even more fees and costs. Sometimes, an actual lawsuit is unavoidable. However, mediation can offer an alternative to parties who want to reign in the spending by their lawyers. The cost of a mediator is a fraction of the cost associated with active litigation.

How long do I have to wait in order to get this resolved?

Typical litigation will last several years. If you are “lucky” enough to file your suit in a fast track state, you still will likely not see the inside of a courtroom for trial for over a year. Mediation cuts through the laborious timeframes imposed by the Court system. You can routinely be involved in mediation in weeks (not years) by simply calling and reserving a half-day or full-day mediation

Shh, is this confidential?

Confidentiality is completely illusive in civil litigation. Once a case is filed, each side can “compel” depositions under oath, get documents by subpoena, and air everyone’s secrets in open. Parties are never able to maintain secrecy on the dispute in a filed lawsuit. Mediation offers a unique forum that is completely confidential. None of the information exchanged at mediation can be used against the parties. Further, the mediator is protected by law from having to divulge anything that occurred. This means that all the parties can freely speak without any fear or recourse for something they might say, read, or feel. There are many cases where privacy and confidentiality is something that should be embraced and actively managed. Mediation is really the only effective mechanism to ensure confidentiality in the process.

Do I have a legitimate case?

Mediation offers the parties a real opportunity to hear what the other side will say about the case. This means, you will have an opportunity to hear exactly the counter-point for your position in the confines of the mediation process. This can often provide valuable insights, highlight the weakness of your legal positions, provide alternative explanations for behavior complained about, or deliver a forum where each party can preview what they think about the merits of their case. Unlike litigation, parties don’t have to spend thousands of dollars, months of depositions and written discovery, or years of waiting to hear about the strength and weakness of their case. Mediation provides each party the ability to instantly see those items in a highly compressed timeframe.

Can this relationship be saved?

It is not surprising that the vast majority of disputes are with people that have active relationships with one another (husband/wife; employer/employee; friend/friend etc…) Litigation almost always burns that connection in an irreparable manner. Rather than destroy, mediation has the ability to preserve and sometimes restore that relationship. Even if the marriage is doomed, the parent will need to learn how to “co-parent” the kids without staring daggers at one another or tapping each other into submission on the mat of life. Maintaining that relationship (employment, friend, family…) is possible with mediation.

How can I avoid having to deal, speak, or see with the other party?

In every litigation case, the parties must see each other (at depositions, court hearings, or trial proceedings). There is no choice. These situations can be uncomfortable. Some of these situations can result in the parties’ lawyers puffing-up and running the wood-chipper in order to destroy the other party and deliver carnage for their clients. As you might imagine, this rarely leads to an immediate and successful resolution of the matter. Unlike this scenario, mediation can offer an alternative. During mediation, the parties can avoid having to see one another. This is called a caucus, and is achieved by the mediator shuttling back and forth from the parties’ separate rooms in order to achieve a resolution. This process is really only available in mediation! A Judge or Jury will not protect your ability to avoid direct contact with the other party. The goal of any mediation is to find a way to achieve resolution and meet the needs of the parties.

Will I be satisfied?

There is no guarantee of satisfaction. However, study after study shows that a higher level of satisfaction and results are achieved in mediation vs. litigation. Litigation always results in an “official” winner or loser. However, the parties often feel like they were chewed-up in the process. Perhaps, this is why mediation results in different feelings and perspective on the win-lose dynamic. Mediation allows each party the opportunity to win something. You might be surprised that parties often really want something different than the other side (it is not always money). Mediation allows each party the opportunity to achieve something meaningful and achieve a level of satisfaction that litigation may not deliver.

Christman Kelley & Clarke Can Help.

Justice Sandra Day O’Connor stated, “The courts of this country should not be the places where resolution of disputes begins. They should be the places where the disputes end after alternative methods of resolving disputes have been considered and tried.” Mediation is a great vehicle to resolve disputes. If you are living among people, you will have disputes.

For your next dispute, call CKC for a free initial consultation to sit down and discuss your questions. We understand the dynamics of mediation and the pitfalls of litigation.