I recently told a friend that instead of practicing law I was going to devote myself full-time to the practice of mediation. She said, “Is that like yoga?” When I tell people I’m a mediator their eyes tend to glaze and they nod their heads, most of them having no idea. Though mediation may not be as widely used as gluten-free diets, it has become a first—and often last—resort for dealing with a wide range of disputes.
Mediation allows parties in conflict to resolve their dispute without hiring lawyers and entering the court system. Because it has become prohibitively expensive (frequently tens of thousands) and time consuming (months to years) for many to contemplate the process of a contested divorce or custody battle, divorce mediation is well on its way to becoming main stream. Family law issues that might otherwise be mired in the court system include: divorce, custody and parenting time, support, asset and debt division, modification of existing orders and associated relationship issues.
Many business and workplace disputes are ideal for mediation: conflicts between employer and employee, between employees, union disputes and contract negotiations, partnership disputes, negligence and personal injury, customer complaints and more. Increasingly, children of aging seniors will encourage siblings, the senior and related care experts to work with a mediator to create the best plan for the senior’s ongoing care, placement and finances. Almost any conflict, from disputes between neighbors to disputes between businesses, can be mediated.
State courts have recognized the efficacy of mediation. Deschutes County courts offer mediation for many cases before setting a trial date. All parties in small claims, landlord/tenant and conservator and guardianship cases, as well as some family court cases, are encouraged to mediate. And the overwhelming majority of the parties reach an agreement in mediation. Colleen Kruse, Mediation Coordinator for Deschutes County Courts notes, “We have found that people are often more satisfied with the mediation process as compared with the trial process and other courts have found that twice as many people comply with the terms of mediated agreements than when a judgment is entered at trial.”
Mediation is an attractive option for the risk-averse, and those reluctant to cede control to a judge or other decision maker. No agreement can be reached without the agreement of both parties, so there is never a risk of “losing” in mediation. Gordon Phillips, a managing partner of Bend family law firm Lage Johnson Phillips, says, “It has been my experience that parties who resolve their dispute through mediation are far more satisfied with the outcome than if they went to trial. Mediation allows the parties to control the results. Trial does not.”
Kruse agrees, “In addition to the practical value that mediation provides by saving the court judicial time, the mediation program also provides our citizens the opportunity to resolve their disputes peacefully and respectfully without relying on a third party to make a decision for them.”
Allan Flood coordinates a fleet of volunteer mediators for Central Oregon Mediation in Bend. Flood says, “By the time many people think of mediation, they have tried other means that often have resulted in high emotions about the issue. When communication breaks down at this point, mediation is a perfect method to resolve these conflicts.”
In mediation the parties set the agenda, while in court the issues are limited by the tedious rules of evidence and procedure. Similarly, mediation process allows parties to explore creative solutions to their specific problems. They often grapple with underlying emotional issues that would never be addressed in the courtroom and this is indispensable when there will be a continuing relationship between the parties.
One of the most attractive aspects of mediation is that it is private. The process is confidential, and unlike a case filed in court (which becomes public record) no one even has to know the mediation took place or the results. “High profile” individuals or those connected to controversial issues can mediate under the radar of the prying public eye.
Parties that mediate agreements have “buy-in”–they’re invested in the outcome—so compliance rates are higher than outcomes imposed by a judge. But as a safeguard the mediator can help draft an agreement that is enforceable in court.
So, are attorneys as “yesterday” as the Kardashians? Yes, in many non-complex cases, especially those that center on the parties’ interests and expectations, rather than on their legal rights. Lawyers are trained to be advocates, zealously helping their clients “win”, and that’s a good thing, but viewed from a wider lens, their clients sometimes win the battle and lose the war. Are parties who choose the legal system above mediation unnecessarily spending money and time litigating, and enduring needless emotional turmoil as their case inches its way through the court system?
Not necessarily. Some cases are more suited to litigation. Parties whose case hinges on a legal interpretation or parties hoping to set legal precedent need a judicial ruling. Parties hoping to receive a huge jury verdict require their case to be litigated. Because all parties must agree to participate in mediation, if one party is unwilling to mediate, or mediates in bad faith, the parties should head to court.
Attorneys may participate in and complement all or part of a mediation process. It is often helpful for both parties to independently consult attorneys prior to the mediation, in order to get a ballpark sense of their legal rights, and what a likely outcome would be should the case proceed to trial. At some point during most mediations, the mediator will urge the parties to consider their best and worst case possible outcomes in order to establish informal settlement parameters.
And many mediation clients may choose to have their attorney participate in the mediation session itself, often in an advisory or support role. In more complex cases, parties often consult with attorneys prior to agreeing to key aspects of the settlement agreement or before signing the final agreement. Though traditionally attorneys are advocates, for a mediation to achieve optimal results, the best attorneys will morph their role into that of an advisor.
Many attorneys acknowledge the strengths of mediation. Phillips, the family law attorney, notes, “Mediation provides for flexibility and a discussion of issues, unlike trial in which it is adversarial and in a rigid format. Mediation allows the parties, attorneys and mediators to work together to find a solution.”
Although the atmosphere in mediation tends to be informal, don’t expect to hold hands and sing Kumbaya. A skilled mediator leads the disputing parties through a flexible and fair process, using technique and insights to clarify interests, break impasse and lead parties from pre-conceived positions to what they realistically need for success.
The spectrum of mediation styles is broad. You can pick your mediator, but you can’t pick your judge.
Dick Eisman is a private mediator, former Central Oregon “Hall of Fame” mediator and Oregon Mediation Association Board member. Eisman’s summary: “After eighteen years of practice in the field, I’m convinced that folks simply stop talking to one another after a conflict arises, which simply adds to the overall situation in a negative way. Once they sit down and discuss their concerns with a competent neutral party (mediator) they will resolve their issues, put the stress and strain of being in conflict behind them, and be able to move on with their respective lives in a more positive way. More importantly, they are often better prepared to handle the next conflict that comes their way.”
Jo Zucker, attorney and mediator for Cascades Mediation, jo@CascadesMediation.com.