Mediation, as used in law, is a form of alternative dispute resolution, a way of resolving disputes between two or more parties with concrete effects. Typically, a third party, the mediator, assists the parties to negociate a settlement. Disputants may mediate disputes in a variety of domains, such as commercial, legal, diplomatic, workplace, community and family matters.
The term “mediation” broadly refers to any instance in which a third party helps others reach agreement. More specifically, mediation has a structure, timetable and dynamics that “ordinary” negotiation lacks. The process is private and confidential, possibly enforced by law. Participation is typically voluntary. The mediator acts as a neutral third party and facilitates rather than directs the process.
Mediators use various techniques to open, or improve, dialogue and empathy between disputants, aiming to help the parties reach an agreement. Much depends on the mediator’s skill and training. As the practice gained popularity, training programs, certifications and licensing followed, producing trained, professional mediators committed to the discipline.
“Mediation is coming, because it has to. . .Companies are not expected to take silly risks with shareholder assets if there are other ways to secure certainty at less cost. Businesses are increasingly drawing a line under their escalating conflict budgets and demanding much faster outcomes. They are also perceiving that they need to lead themselves out of the concentric circles which characterise litigation. Practitioners . . . are realizing that to retain their ever more discerning client base, and to win new clients, they need to prove themselves as spontaneous early conflict resolvers and solution providers, not just as good litigators and processors.”
Michael Leathes Head, Intellectual Property British American Tobacco
There are many forms of mediation. The most commonly used form is traditional mediation. This process has several distinct phases. In the first phase, the joint session, all parties, attorneys and the mediator are present. The parties may choose to have additional persons present, such as experts or psychologists. The attorneys present their client’s view of the facts and a discussion of the law which is applicable. It is critical for the parties to personally tell their stories and be heard by the opposing party and attorney.
If the parties listen carefully, they are likely to learn that the opposition’s perceptions are starkly different from their own. Becoming aware of these major differences in perceptions of the events which led to the dispute is extremely beneficial. When the parties carefully consider their different positions on important issues, they can begin to understand how difficult it will be for a judge or jury to make a decision. Which party is right? Which party is telling the truth? What proof does each party have to support its claims?
What Role Do the Parties Play in the Mediation?
Each participant in the mediation has a critical role. In fact, if each participant does not play the role the way it needs to be played, the mediation may fail. A party to a dispute or lawsuit needs to participate fully in the mediation process, preferably even before the mediation begins. Each party benefits by helping plan the mediation process, and each needs to help his attorney prepare for the mediation. A party needs to listen very carefully to what the opposing attorney says in her opening statement. This is a preview of what the judge or jury will hear during trial. Listen carefully.
Who Must be Present at the Mediation?
Each party must have a person present who can make a binding decision on behalf of that party. If the party is an individual, he or she must be present. If the party is a corporation, there must be an officer present who can bind the corporation. If the party is a governmental agency, all persons from the agency who are necessary to make a recommendation to the governmental board must be present. If an insurance company is involved, a representative with sufficient authority to make a decision on behalf of the insurance company must be present. Why go to all this trouble of making sure that each party is present and represented by someone who can make a binding decision? The dispute will very likely not settle otherwise.
In some cases parties may wish to have their technical experts at the mediation. When all parties have their experts present, this allows the opportunity to learn more than they would from days of costly experts depositions.
In some disputes emotional issues are a major, if not controlling, component. Unless the emotional issues are addressed during the joint session and explored during the caucus sessions, the dispute may not settle. Insurance bad faith, wrongful discharge, sexual harassment, and discrimination disputes are usually very highly emotionally charged. In these disputes it may be very helpful for a party to have his or her psychologist present. For example, in a recent wrongful discharge/malicious prosecution case (without getting too technical, you can assume this type of case is very nasty), during pre-mediation discussions with counsel, I suggested to plaintiff’s attorney that the plaintiff bring her psychologist to the mediation for support. When it came time for the plaintiff to tell her story, she absolutely froze. We adjourned the joint session so I could caucus with the plaintiff, her psychologist and attorney, where she was encouraged to share her story and feelings. When the joint session resumed, though the plaintiff spoke only briefly, she felt she was heard by the defendant. The defendant spoke openly, though briefly, as well. The case settled, and I attribute the settlement to the honest and open, though brief, discussion between the employee and ex-employer.