January 5, 2011
Published in Business in Savannah
When faced with a complex legal dispute, parties involved should consider alternative dispute resolution, particularly mediation, before turning to litigation.
Alternative dispute resolution is a general term that describes a variety of non-traditional methods used to resolve cases. The most common of these methods are mediation and arbitration. Arbitration is a more formal process that involves increased rules, procedures and the intervention of a third-party adjudicator who typically acts as the judge and jury.
The mediation process allows the participants, with the assistance of neutral parties, to systematically isolate disputed issues in order to develop alternative options and reach a consensual settlement accommodating each party’s needs. This type of arrangement emphasizes the participants’ independent responsibility for making decisions. Mediation therefore becomes an empowering process for all parties involved.
Mediation can be preferable to litigation for a number of reasons including privacy, confidentiality and control. In addition, there is less expense and a quicker timeline for resolution. Consider the benefits of resolving a dispute without the presence of court reporters, a jury, clerk, judge, bailiff, and journalists. A private office is much more comfortable and no record of the discussion that occurs during mediation is kept.
Many types of disputes are mediated including commercial and real estate matters, contracts, employee and employer disagreements, personal injury, on-the-job accidents, workman’s compensation, product liability, sexual harassment, and discrimination. All statements made during these types of proceedings are confidential and cannot be used at a later time against the person making the statement. The enforcement of the confidentiality protection allows all parties involved to be more honest and open with the mediator.
The mediator uses what he or she has learned in confidence and offers guidance and direction to negotiations. They are not retained to tell the parties how to act or what they consider the case to be worth. They are only there to guide and advise negotiation strategy, not give opinions. This allows for more control to remain vested in the individual parties themselves. Typically, mediation is scheduled and resolved within one day and costs no more than an attorney would charge to prepare for and record an average deposition.
With such considerable benefits for all involved, it makes one wonder why mediation is not required for more disputes. Like everything else, however, mediation does have its critics. There are those who do not trust the process due to a personal negative experience. Others simply prefer the competitiveness of trial or arbitration. Some are concerned that the process allows parties to avoid legal precedents which underlie state and federal laws. While some of these concerns may have merit, mediation still affords willing parties with a constructive and uncomplicated method to resolve many types of disputes.
The fact is that there are a number of cases which will never settle through the mediation process, the negotiation process or any other manner short of trial. However, an easy way for a business to protect itself from future conflicts is to include a mediation clause in its contracts. Mediation clauses are increasingly being included in contracts either in place of arbitration clauses or as a precondition to arbitration and/or litigation. Including this type of clause ensures that any disputes that may arise will be settled through mediation rather than litigation.
Be smart and protect yourself and your business by considering mediation as a sensible alternative to conventional litigation.
