Alternative Dispute Resolution Mediation

By: Mark Javier

 

The American legal system remains the finest and fairest ever created in the history of the world. All those who seek justice in it desire an equal opportunity to find the most equitable resolution of their disputes. The most recognizable venue for this system is the courtroom. However, in the past two decades a new venue has emerged as the preferred locale for resolving legal disagreements: the conference room. With this change of venue also comes a change in attitude away from the cherished adversarial system that has been the hallmark of American jurisprudence. This change is called mediation.

The legal profession has been branded with an unsavory reputation due to the adversarial process of cross-examination, impeachment, discrediting, and defeating opponents. The new role of mediator asks lawyers to do away with the traditional weapons of battle and to replace the cloak of advocate with that of peacemaker.

Mediators work more as problem-solvers, harmonizers, and healers. Lawyer no longer think with the one-sided zeal of an advocate, but now cultivate rapport and trust, seek common ground, show support for all those with an interest in the dispute. The goal goes beyond mere resolution of the legal issues, but reaches for conciliation, peace and healing between the parties.

In the past thirty years, the number of courtroom trials has dramatically decreased. Many reasons account for this decline, primarily because trials are too costly, too lengthy, too destructive and too inefficient. The cost of trials, including attorney’s fees and expert witnesses, has soared to the point that ordinary citizens cannot afford to access the justice system. Overcrowded dockets have driven the length of litigation to the point where some cases are taking a decade or more to try. The most compelling reason for turning away from the courtroom is the destructive nature of trials.

Many parties, witnesses and lawyers suffer mental, emotional and physical damage as they engage in the grueling battles of litigation.

Even though mediation provides relief from the tribulations of litigation and trial, there are still many who are not sold on its use to resolve conflicts. Some even go so far as to believe it threatens the foundations of democracy.

A major criticism of mediation is that it undermines our jury system and the Seventh Amendment to the US Constitution.

Others are dismayed with the inability of the appellate court to reach cases settled through mediation, this abrogates the law making function of the high courts and reduces the authority of the courts and rule-of-law. Another concern of detractors is that parties may not be afforded the same procedural fairness as a court would provide and that they would be at the mercy of private entrepreneurs, mediators.

Mediation introduces a thirdparty neutral into negotiations. Parties enter into mediation because any prior negotiations directly between the parties has been unsuccessful. The mediator assists the parties in finding common ground and clarify misunderstandings. Because mediation is non-binding, the parties still have the option to go to trial if the mediation does not lead to settlement. However, if the parties reach settlement and executed written consents, it will have the same binding effect as any settlement and can be enforced in the courts.

Since mediation is designed to avoid all the turmoil of litigation, it has become a very popular method of dispute resolution. Many courts now require parties to enter into mandatory mediation prior to scheduling trial dates. Anyone engaged in a legal dispute should be aware that mediation is a valuable alternative to litigation and should seek to engage the service of a trained and qualified mediator to help resolve their disputes. ##