ADR - Part I: Mediation
A Legal Moment

Alternative Dispute Resolution -- Part I:  Mediation

A 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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Clifford C. ("Kip") Marshall is a trial attorney with, and President of, Marshall, Roth & Gregory, PC.  Recognized as a "Best Lawyer"™ (Government Relations Practice) for the past six years -- most recently in 2017 -- Kip's practice encompasses all forms of land and title litigation, commercial litigation and catastrophic injury.
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