Alternative
Dispute Resolution -- Part I:
MediationA
mediated settlement conference has a high
probability of achieving a mutually-acceptable
outcome to a dispute while curtailing the time and
expense of litigation.
Alternative
dispute resolution (ADR) refers to a broad
category of different processes that can assist
parties in resolving disputes outside the confines
of a courtroom. ADR, which is intended to be
less formal, less stressful and party empowered,
generally includes mediation, arbitration, neutral
evaluation, summary trials and collaborative law.
In this article, I will discuss the most
popular of these processes:
“Mediation.”
Mediation* is a procedure in which the parties
discuss their disputes with the assistance of a
trained, impartial third person(s) who assists
them in finding a mutually agreeable and
voluntary resolution. Frequently,
mediation occurs in the course of litigation but
parties may also agree to mediate their dispute
before an action is even filed (“pre-litigation
mediation”). Disputes suitable for mediation
arise in real estate transactions, commercial
ventures, personal injury, construction, workers
compensation, employment, homeowners’
associations, community relations, divorce,
domestic relations, or other matters that do not
involve complex procedural or evidentiary issues.
In North Carolina, the
Court system often requires parties to a lawsuit
to attend a mediated conference prior to going to
trial. By contrast, pre-litigation mediation is
entirely voluntary. The mediator,
also known as a “Neutral,” is usually a person
trained in negotiation and mediation techniques
and hopefully endowed with patience, persistence
and common sense. A trained mediator has an
arsenal of negotiation techniques, interpersonal
interaction, effective listening and communication
skills. Unlike a judge or
arbitrator, a mediator cannot decide the matter or
render a resolution to the conflict ‒ only the
parties are empowered to resolve the
dispute. It is the mediator’s job to
facilitate and guide the parties’ discussion both
in joint sessions and in private caucuses, thereby
enabling the parties to express their claims,
their emotions and their goals for resolution in
an atmosphere that seeks to find common ground.
In many jurisdictions,
including North Carolina, the mediator may be an
attorney but cannot provide legal advice to any
party while serving as the mediator. This does not
preclude the mediator from offering her/his
thoughts on the pros and cons of the parties’
positions or achievable goals. Additionally,
a mediator's legal expertise in the subject matter
of the dispute or general litigation may be
beneficial to the parties in wording and framing a
mediated settlement agreement or in circumstances
where the parties are open to neutral case
evaluation (an alternative type of
ADR).
Stages of a
Mediation Parties
interested in participating in mediation
frequently select a mutually-acceptable mediator
through counsel but the mediator may alternatively
be court-appointed. The mediation session
itself has three stages. The first stage is the
“Joint Session” in which the parties, their
counsel, and the mediator meet in the same
conference room for two purposes: one, to
allow the mediator to introduce him- or herself
and explain the mediation process. Two, the
parties and/or their counsel can briefly set out
their case for the benefit of the mediator and the
opposing party, and to clarify what each side may
consider to be their resolution goals. The
number of people present will vary, but each side
generally includes a spokesperson (typically a
lawyer), one or more people involved directly in
the dispute, and someone with the authority to
commit the party to a binding settlement.
At the joint session, the mediator
will likely advise the parties what his authority
is, how he may utilize the information each side
may share with him during the entire session and
what limitations the parties may have regarding
the future use of the shared information. S/he
will encourage all parties present to express
their views of the facts and their goals. The
mediator will also ask questions that enable him
or her to better understand the dispute and its
underlying dynamic. Some mediators
will continue discussions in joint session, hoping
that the open exchange of views will quickly
resolve the dispute. However, at some point
the mediator will likely move to the second stage
‒ known as “caucuses” ‒ in which the mediator
meets with the parties in separate “breakout”
rooms. (If emotions are running especially
high in the dispute, the mediator might bypass the
Joint Session altogether and proceed directly to
caucuses to avoid confrontation which could
undermine negotiations.) Caucuses
allow the parties to discuss with the mediator
their view of the strengths and weaknesses of
their case as well as the other side’s. It
is also an opportunity to delve more deeply into
what the parties’ core concerns and goals are and
to try to fashion a strategy and proposed
resolution. Generally, a mediator expects
that any information shared in a caucus may be
disclosed to the other side but the party
disclosing the information can instruct the
mediator not to disclose the information, and the
mediator is bound to comply with that request
Armed with this additional
information, the mediator begins to shuttle
between the two “breakout” rooms for a series of
conversations, suggestions, proposals, and
counter-proposals seeking to narrow the
differences between the parties and find common
ground for a resolution which will satisfy each
party’s core interests. This stage two process is
sometimes referred to as “shuttle diplomacy”. Some
mediators volunteer settlement ideas; others,
who are less activist, will not. You may
want to solicit the mediator for suggestions
regarding your own settlement proposal.
At all times the mediator’s goal is
to find a point or points of common ground and
value to which both sides can agree.
Depending on the complexity and
importance of the matters in dispute, the length
of a mediation can run several hours, days,
months, or even longer to reach a mediated
agreement.
Success
Rate The most remarkable
thing about mediation is its success rate:
approximately 80% of all mediated disputes are
resolved. Sometimes the resolution is truly
“win-win.” Other times, each side walks away from
a successful mediation feeling equally
dissatisfied but still delighted to have the
matter resolved. Ultimately,
the responsibility and authority for coming to an
agreement remain with the people who have the
conflict. The dispute is viewed as a problem to be
solved. The mediator doesn’t make the decisions,
and you don’t need to “take your chances” in the
courtroom. Many individuals prefer making
their own choices when there are complex
tradeoffs, rather than giving that power to a
judge. Because the parties in mediation are
the empowered parties to resolve the matter, it
has been found that resolution by mediation has
higher satisfaction rates for the parties in lieu
of traditional trial by jury. The parties’
active involvement deepens their commitment to the
settlement. If a settlement is
reached, the Mediator and the parties’ counsel or
representative will work together to create a
Mediated Settlement Agreement which all parties,
counsel and the mediator will execute before the
session ends. All material terms of the settlement
should be included within the Mediated Settlement
Agreement. Though there may exist
ministerial actions which parties may need to
complete to achieve the resolution, once a
Mediated Settlement Agreement is executed, it is
binding upon all the parties to it and may be
enforceable in court. If a
settlement is not reached, the mediator will call
the session an “impasse” and end the
conference. Thereafter, the parties may
continue to discuss settlement amongst themselves
or request additional mediation sessions if they
feel close to an agreement. An impasse
leaves neither party in any worse position than
they were before the mediation session. In
fact, most parties come away from a mediation
session much more informed about the other side’s
position, the merits of their own position and the
likelihood of success and costs of litigation to
achieve that success. Mediation
can be a less intimidating process than going to
court. The informality and flexibility of the
mediation process allows the parties to express
their positions as they see fit.
In my years of practice, I have found that
mediation settlement success rate is consistent
with the average success rate stated of 80 percent
or even higher. As stated above, even an impasse
is a positive outcome by better understanding the
other sides’ positions and having a neutral
examine and discuss your side’s position and
achievable goals. If you are
having a dispute which may end up in litigation,
or is already in litigation you should discuss
with your counsel the prospects of utilizing
mediation in your matter. Mediation is far
less cumbersome and significantly less expensive
than a full-blown jury trial.
*Mr. Marshall is a certified North Carolina
Superior Court mediator. He has participated
in countless mediations both as a party advocate
and the Mediator in matters arising in the courts
throughout North Carolina and the United States
District Court for the Western District of North
Carolina. From 1998 to 2000 he served on the
governing board of The Mediation Center and was
its President in
1999-2000.
.
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