Why Mediate Your Dispute?
In a civilized society, serious disputes need to be resolved. There are two routes to resolution: resolution by agreement or resolution by adjudication. Traditionally the only officially endorsed system of conflict resolution was courtroom trial. In recent years, we have seen the endorsement of various alternative methods of dispute resolution including arbitration, specialized tribunals, ombudsmen and more recently mediation.
The resolution of disputes through trial in a court of law or arbitration can be costly in terms of time, disruption of business and quality of life, expense, and outcome. The trial system imposes significant logistical demands in terms of the gathering of witnesses, evidence and legal knowledge for the trial, which can last several days. The burden of trial can add to the social, personal and financial fall-outs occasioned by disputes, and even being successful in litigation does not insulate the successful party from potential downsides.
Mediation, being a different process, offers an alternative route to dispute resolution. The essence of mediation is that an independent mediator endeavors to assist the parties to come to a voluntary settlement. It is not a private trial. The mediator is neutral. A mediator does not adjudicate the rights or wrongs or come to a decision as would a judge or an arbitrator. Instead, the mediator helps the parties themselves to craft the solution.
The seed for the mediation revolution was set in the U.S. in 1976 when the Chief Justice of the Supreme Court, Warren E. Burger, convened the Roscoe E. Pound Conference on the Causes of Popular Dissatisfaction with the Administration of Justice. At that conference, professor Frank Sander of Harvard Law School advanced the notion of the multi-door courthouse with mediation as one of a number of dispute resolution options on the court menu. That approach found many advocates, both nationally and internationally.
The How Of Mediation
Mediation is designed to maximize the parties’ control over the resolution of their dispute and to improve the quality of the decisions they make on whether or not to settle. Dispute Solutions, LLC, offers a participatory process that is based on the presence of full settlement control at the negotiating table. In essence, it is an expanded, more productive way of negotiating. Mediation methods offered are primarily facilitative, but we also offer evaluative techniques if the parties request them, as described in Stage 3 below.
Before the mediation, each party submits to the mediator and to all other parties a “Case Overview” summarizing its view of the case (not more than four pages). The confidentiality of the process is protected by an agreement that all parties sign at the beginning of the session, as well as by state law as found in Massachusetts (M.G.L. c.233 §23C).
Stage 1: Case Overviews
Mediated negotiation begins with a joint meeting during which all participants are in the room. Each party has 15 minutes to summarize how it views the case, followed by some time for group discussion. Documents supporting each party’s view of the case as well as all depositions should be available. Parties should not bring experts or other witnesses to the negotiation unless agreed upon in advance.
Stage 2: Information Development And Proposal Exchanges
The negotiation usually continues with a series of separate meetings during which the mediator meets privately with each party or a group of parties to develop and exchange information, discuss strengths and weaknesses in the case, and to explore mutual gain possibilities. Each separate meeting normally concludes with the parties’ developing a new settlement proposal for presentation to other participants. More than almost anything else, a credible deadline helps to settle cases. The mediation is over at the end of the allotted time, so the parties should be exchanging serious settlement proposals well before then. If an agreement is reached, it is put into a brief written form and signed before leaving the mediation location.
Stage 3 (Optional): Mediator Proposal If Jointly Requested
A majority of cases settle using the procedures outlined above. However, if the parties reach an impasse after a serious effort to negotiate their own resolution, the mediator may offer the parties the option of a final settlement proposal. This option is employed only if the parties jointly request it. (If requested, the mediator develops a proposal that seems fair to the mediator without “splitting the difference”). The parties have time to consider this process and then to respond confidentially to the mediator with a “Yes” or “No.” If one party says “Yes,” then this entitles them to hear the other party’s response, but that party’s “Yes” is not communicated to the other party unless it also said “Yes.” If one party says “No,” then that party will not be entitled to hear the other party’s response. Thus, no party risks a unilateral move in this process — the case either settles for the proposed terms or nobody’s position changes.
How To Use This Process Effectively
Take advantage of the control that separate meetings give you over the use of information.
In every negotiation, there is information that is useful to putting an acceptable agreement together but too risky to discuss with other parties because it might be used by them to their disadvantage (e.g., underlying concerns, actual rather than apparent negotiating targets or priorities, etc.). In a separate meeting, however, any information you tell the mediator not to disclose to other parties is kept confidential. The more useful information that a party is willing to candidly discuss with the mediator, the more effective the mediator can be in helping to reach an acceptable agreement. The less useful information that the parties are willing to candidly discuss, the more likely that the mediation will become a conventional, deception-based negotiation.
Stay focused on developing realistic settlement proposals.
Insistent, unbalanced advocacy during the separate meetings is counterproductive in this process. That tactic may work well with evaluative mediators who see their primary function to be hearing the parties’ presentations and then telling them what the mediator thinks are reasonable settlement terms. In a facilitative process, however, the parties develop their own proposals for consideration by other participants.
Come to the negotiation with a willingness to be flexible and with an open mind.
The parties should recognize that mediation is a dynamic process during which a large quantity of information will be processed — information generated by you, by other parties and by the mediator. The parties will have to make decisions along the way, and the quality of those decisions will be better if made based on what you know and feel at the time you are making them, rather than on a rigid “bottom line” position adopted before the negotiation begins. Each party is of course encouraged to discuss strategy and goals before the session, but a prior fixing of a bottom line with no possibility for reassessment during the negotiation fails to take advantage of all this process can offer through the development of information.
Interested? Contact Dispute Solutions, LLC/Feinman Law Offices For A Consultation.
Dispute Solutions, LLC/Feinman Law Offices provides mediation and other alternative dispute resolution services for clients in Lowell, Lawrence and Haverhill, and throughout Massachusetts and southern New Hampshire. To discuss an alternative method of dispute resolution in your case, call 978-494-6669 or fill out the firm’s online contact form.