Most people are aware of the high cost and time expenditure required by litigation. Professionals such as CPA’s, doctors and attorneys are often not only aware but directly familiar with these issues. Many contracts are now written to mandate some resolution of disputes other than “going to court”.
As the courts have become busier and busier, a solution promulgated by judges, lawyers and other professionals has been the use of alternative dispute resolution (“ADR”). Many judges are actively submitting contested matters to mediation, case evaluation and other dispute resolution processes, including arbitration. Court rules basically mandate consideration and use of ADR. It is important to understand the options available when ADR is considered or mandated.
The courts have authority to compel parties to mediation and/or case evaluation. As a result many courts are requiring mediation or case evaluation before cases may proceed to trial. Mediation has become the alternate method of solving conflicts most favored by the courts and public agencies.
Mediation is a viable and effective way to resolve disputes even after litigation has been commenced. This article will discuss mediation and how Kemp Klein can assist in reaching solutions without litigation or as a method of resolving litigation.
Mediation is a process of giving people the tools to maintain control and reach their own decisions to resolve conflict. Mediation is a meeting among a neutral mediator, disputants and their representatives to discuss settlement. The mediator’s role is to help the disputants explore issues, needs and settlement options. The mediator may offer suggestions and point out issues that the disputants may have overlooked, but resolution of the dispute rests with the disputants themselves. A mediation conference can be scheduled very quickly and requires a relatively small amount of preparation time. The conference usually begins with a joint discussion of the case, followed by the mediator working with the disputants both together and separately, if appropriate, to resolve the case.
Many cases may be resolved within a few hours. Perhaps most importantly, mediation works! Statistics show that 85% of commercial matters and 95% of personal injury matters end in written settlement agreements.
There are multiple reasons that disputants and their counsel may consider mediation:
- The cost, including legal fees, and time involved in litigation wears on the disputants over time;
- Reduce the hostility between the parties and help them to engage in a meaningful dialogue on the issues at hand;
- Open discussions into areas not previously considered or inadequately developed;
- Communicate positions or proposals in understandable or more palatable terms;
- Probe and uncover additional facts and the real interests of parties;
- Help each party to better understand the other parties’ views and evaluations of a particular issue, while maintaining confidentiality;
- Narrow the issues and each party’s positions, and reality testing extreme demands;
- Gauge the receptiveness for a proposal or suggestion;
- Explore alternatives and brainstorm for solutions;
- Identify what is important and what is expendable;
- Prevent regression or raising of surprise issues; and
- Structure a settlement to resolve current problems and future parties’ needs.
Stages of a Mediation
A mediation has multiple stages designed to promote dialogue and communication between the parties and bring about settlement discussions. The Mediator will contact the parties (“disputants”) after being selected or appointed by the court and will explain the process and schedule a mediation session. During this intake process, the disputants have an opportunity to ask any questions about the process and provide the Mediator with background on the case. The Mediator will schedule a joint session for the parties and explain the ground rules for the mediation at the session. The disputants will have an opportunity to share their understanding of the dispute in lay terms and in a confidential and relaxed setting. The Mediator will control the process but will foster communication between the disputants and will attempt to neutralize issues and discover needs of the parties (to get past their positions in the dispute). The Mediator will note the issues and assist the disputants in generating and evaluating options. The Mediator may utilize a “caucus session” (separate the parties in different rooms) if necessary but always in an attempt to assist the disputants in creating a framework for settlement. If the disputants can agree to a settlement, the Mediator can reduce the settlement to a writing for the parties (unless their counsel wish to draft the settlement).
What is the role of your (a disputant’s) attorney?
It is common for a disputant in mediation to bring his or her own counsel to the mediation proceedings. The mediator will discuss the mediation process with counsel for a disputant prior to the proceedings and explain the attorney’s role to promote a positive result from the mediation. Mediation is designed for disputants to communicate directly and have counsel only for guidance and consultation. The attorney representing a disputant is not attending the mediation to monopolize the proceedings but rather to allow their client (with guidance) to communicate directly with the other side in a confidential and non-binding setting in the hopes of brainstorming solutions to the conflict under the control of a neutral mediator. Of course, the attorney can draft the mediation settlement agreement and judgment (if applicable) or provide input for the mediator’s draft.
Resources at Kemp Klein Law Firm
The authors have each completed a 40 hour general civil mediation training at the Oakland Mediation Center. Mr. Buttiglieri specializes in the practice of probate litigation and Ms. Brazzil is principally a business/corporate practitioner. Both have or will continue to offer mediation in their practice areas. The law firm has facilities to conduct mediation in a professional and comfortable setting and support staff is available to ensure a smooth mediation process.
Either Mr. Buttiglieri or Ms. Brazzil would be happy to answer questions about mediation and plan to present a seminar in the near future to educate and benefit clients and others as to the process. Please contact either one of them for further information.
Other Kemp Klein lawyers in the Alternative Dispute Resolution practice group are Raymond L. Morrow, Barbara P. Andruccioli, and Lawrence G. Snyder. In addition, Thomas L. Boyer and Stuart Sinai are certified by the American Arbitrator Association as arbitrators in their respective practice areas.