Introduction

You probably already know that very few cases filed in civil court ever travel as far as the courthouse steps. By some estimates, less than 5% of all civil case filed actually go to trial. Rather, as you probably also know, most cases "settle" after a long, drawn out process of negotiation, give and take, posturing, saber rattling, cranky letters and depositions. All of this has significant costs: time, money, emotional distress and a sense that someone must win or lose -- no middle ground here!

Getting what you need sounds simple but people in conflict are often focused on what they want but rarely on what they need. Our system of litigation and the inevitable "settlement" (fewer than 5% of cases ever get to the courthouse) reduces all conflict to a win-lose, confrontational mode of operation -- total war. Sometimes this is absolutely necessary, other times not. That is where an alternative like mediation can be very useful.

Mediation is occasionally referred to as "an extension of negotiations." In some cases, that may be true. However, the distinguishing feature of a mediation, the presence of a third party, is highly significant. Parties who cannot arrive at a resolution on their own will enlist the services of a mediator who is able to provide a private, structured but informal process whereby each participant's side of the story will be heard. Moreover, the parties can expect the mediator to help them adjust their perspective, shifting it from a purely right or wrong attitude to one that embraces a broader framework, perhaps unveiling hidden agendas and issues that go far beyond the obvious. Mediation enables people to identify their true interests and communicate effectively in a collaborative manner.

The following pages discuss some common questions about mediation and its appropriate use.

• Is it just a "new age" idea?
  
  
• Sounds like "splitting the difference” -- a compromise
  
  
• Can anything I say during the mediation be later used against me?
  
  
• What if I lose in mediation?
  
  
• Won’t it be taken as a sign of weakness by the other side if I suggest mediation?
  
  
• Is mediation similar to arbitration?
  
  
• Differences between mediation and arbitration
  
  
• What’s involved in the mediation process?
  
  

Is it just a "new age" idea?

Mediation is certainly not a recent development, a "new age" system or a therapy session. The use of mediation has been part of the culture in the United States since the first Europeans arrived; Native Americans used a sophisticated system of conflict resolution referred to as “conflict transformation” and is often used today in various circumstances. Immigrant communities regularly used mediation in lieu of the court system on account of the language barrier and fear of a foreign legal system.

In more recent times, organized labor has used mediation since the late 19th century,and the process was codified in the Taft-Hartley Act (1947) and other legislation. In industries where disputes would mean disaster to labor and management alike, Dispute Resolution Boards (DRBs) and mandatory mediation or arbitration clauses are common.

Since the early 1970s, local court jurisdictions and the federal courts have mandated the use of mediation as part of the process of pursuing a lawsuit. This is probably the least desirable manner of using mediation since its success is correlated with parties voluntarily deciding to pursue mediation.

Beginning in the late 20th century, the popularity of doing business on the internet and confusion over what national or international law governs a particular transaction encouraged businesses and individuals to use mediation and other forms of privatized dispute resolution. Since that time businesses have found it to be a very efficient and equitable means of settling disputes, and today online dispute management is the fastest growing type of dispute resolution today.

Sounds like a way of "splitting the difference” - a compromise

Mediation is not "splitting the difference." Some people mistake mediation for settlement, which is indeed usually a compromise between parties and results in a lose-lose arrangement for everyone. The goal of mediation is to clarify issues, search for reasonable (and possibly overlooked) solutions under the guidance of a disinterested third party, and most importantly, uncover what's critical to each side, i.e., their true interests.Mediation is best when it is voluntary; parties can quit at any time without coming to a resolution.

Can anything I say during the mediation be later used against me?

No. The entire mediation process is confidential except for the fact that it has occurred. Unless the participants agree otherwise, parties and the mediator may not disclose any information concerning the process, outcome, terms of agreement or content (oral or written). In addition, the process is considered a compromise negotiation under Federal Rule of Evidence 408. There are comparable state rules and other legislation protecting the confidentiality of mediation. Generally, this means that anything that is said, offered, rejected or promised during the mediation cannot be later used in court as evidence. Of course, it is possible that the same evidence given at a mediation can be obtained otherwise (for example, later at a deposition), so the inadmissibility is not absolute.

What if I lose in mediation?

You can’t. Mediation is not a judicial forum. There are no winners or losers. The mediator does not make a decision, render legal advice or perform any type of legal service. In fact, the mediator might not be a lawyer at all. Participants do not give up legal rights when they agree to a mediate a dispute and retain the right to file a lawsuit if no agreement is reached.

Won’t it be taken as a sign of weakness by the other side if I suggest mediation?

Important question! Mediation is not intended to stifle, gloss over or pretend that a conflict does not exist. Moreover, it is not intended to be a vehicle whereby concessions are extracted or a "make nice" atmosphere is expected and enforced. Those who have participated in mediation know that the opposite is true. Unlike the courtroom where decorum and expectations of appropriate behavior are enforced by adherence to byzantine rules and prescribed, ritual conduct, a mediation forum is not so constrained and offers participants the opportunity to vent their anger and tell their side of the story. Success in the courtroom rarely yields emotional gratification, despite the significant investment of time, money and ongoing frustration. While it is impossible to predict or know the other party's feelings or perceptions, it is clear that mediation is not for the conflict-adverse.

Is mediation similar to arbitration?

They are very different from one another. Mediation is an informal process that is facilitated by a third party, the mediator, but the ultimate resolution (if reached) is fashioned by the parties. While each party is entitled to bring a representative with them (for example, a lawyer), that usually does not happen. The cost is modest and there are no rules of evidence, although the mediator does set down the ground rules. There is no requirement that the parties reach a resolution and the participants can withdraw at any time, for any reason. Therefore, the mediation is not binding on anyone. Usually mediations last a day, rarely longer.

Differences between mediation and arbitration

In arbitration, a neutral third party who is jointly chosen by each party hears arguments and testimony (including evidence) from each side and then decides on the outcome of the dispute. Arbitration may be "binding" which means that each of the parties waives their right to a trial and accept the arbitrator's decision as final. Non-binding arbitration means that the parties can request a trial (pursue a lawsuit) if they do not accept the decision of the arbitrator. Arbitration is somewhat similar to a trial, although there is less formality and it is usually private; often there is no public record. Unlike a mediator, an arbitrator does render a decision concerning the dispute and usually the decision is binding on all parties who and must accept it as a judgment, just as in a court decision. While less expensive than a trial, arbitration costs more than mediation and usually last longer, sometimes weeks. Parties are entitled to representation and usually bring their lawyers.

What’s involved in beginning the mediation process?

The process is very simple. First, the parties agree to mediate, usually by written agreement. A suitable mediator can be found by contacting your local bar association or professional mediator groups such as the Association for Conflict Resolution. The agreement specifies the parties, the mediator, describes the matters at issue and sets forth the rules on confidentiality. Since these matters are of legal consequence, parties might want to consider retaining legal counsel to assist them in structuring a mediation. For more information on finding a mediator, please see: “Mediation: four easy steps .”