Unlike arbitration, mediation is not a mandatory, “binding” process.
Many people embroiled in a legal battle don’t realize that they have another option mediation. Mediation is a private, non-adversarial method of resolving disputes. In mediation, the people involved in the dispute are in control of their case, the results, and the amount of time it takes to reach an agreement. People involved in mediation have the freedom to create solutions that would not be available to them in the courtroom.
Compare these examples:
THE TRADITIONAL ROUTE – LITIGATION
Company A discovers that their biggest competitor is selling a product almost identical to their patented product. The details involved in this potential patent infringement case are very technical and highly complex, making it difficult for a jury to understand and render a fair verdict. Each company spends over $100,000 in legal expenses over the four-year period it takes for the litigation to play out in the court system, both companies take a beating in negative press coverage of the suit, and neither is happy with the result of the trial.
Tom and Sally were divorced five years ago. They could not agree on an amount for child support for their three children. Sally felt that Tom, who is self-employed, was able to hide income from her. In addition, his business paid for many of Tom’s personal expenses, such as the summer beach house rental, the lease payments on his new sports car, and the apartment he keeps in Center City. Sally, faced with having to find a full-time job and childcare, was considering relocating to Massachusetts to be near her parents and sister, who could provide after-school childcare for the children at no cost. Sally and Tom spent two years in the court system in their suburban county, presenting their case to four separate individuals before Tom appealed the rulings to the Superior Court. In the end, Sally and Tom had each spent thousands of dollars on lawyers, accountants and other experts, and Tom was facing serious competition in his business from a new company whose president was not distracted by the court proceedings.
Mary is a sales representative who wants to leave her company and take a better job offered to her by a competitor, however, she has a non-compete clause in her current contract. Mary accepts the new job; her former employer goes to court to enforce the non-compete clause. After a year of expensive and stressful litigation, Mary loses the case and her new job.
Ace Widget terminates Joel for non-performance in his job. Joel gets a lawyer and they inform Ace that Joel plans to file suit on the grounds of age discrimination. Joe wins a small award at trial, but is then unable to obtain other employment in his field.
Here’s how these cases might have been resolved in mediation:
THE NON-TRADITIONAL ROUTE – MEDIATION
Company A and Company B sit down with a mediation team and an impartial third-party expert in their field who understands the very technical and highly complex details of the case. Over a period of three months they hammer out an agreement that is acceptable to everyone. The competitor is allowed to continue to produce the competing product, with a few adjustments to manufacturing technique and marketing approaches. Most of the mediation sessions occurred “after hours,” so both companies suffered only minimal disruption to normal business operations, and no one other than the parties involved ever found out about the dispute.
Tom and Sally presented their income and expense figures during mediation. Tom gave Sally full access to the books and records of his business, which she was able to review with her accountant. When Tom saw Sally’s expenses for herself and the children, he offered to make payments for items that had not been addressed during the litigation. They discussed the state support guidelines and decided on a figure which was higher than the court would have ordered, because Tom agreed with Sally that certain expenses for the children were important and should not be sacrificed. The good will which resulted from the mediation of the child support spilled over into the custody and parenting issues, which Tom and Sally were also able to resolve in mediation.
Mary, her former employer and her new company retain a trained mediator to help them design a solution. Mary is able to accept the new position with some minor changes to her sales territory and the products she may represent. The entire mediation process occurred in four sessions over several weeks, and the cost was a fraction of the potential litigation cost. In addition, Mary remains on good terms with her former employer.
Joel, Ace, and a trained mediator are able to agree to a generous separation package for Joel, as well as some much-needed job training and outplacement assistance.
BENEFITS OF MEDIATION
Mediation has many other benefits, including:
Control – No agreement is signed until all parties involved are convinced that it will work for them. Unlike arbitration, mediation is not a mandatory, “binding” process. The mediators control the process and establish the ground rules, but the parties involved in the dispute create the solution.
Reduced cost vs. litigation – Mediating a case can save the parties from 50% to 95% of the cost of the traditional process.
Timing – Mediation sessions are set at times that are convenient for the parties involved. The parties may take as much time as they need to carefully consider each proposal, gather information and explore options before they reach an agreement.
Privacy – Confidentiality is a critically important feature to many businesses, as well as to private citizens. Mediation is a completely private process; unlike a court proceeding which is open to the general public. There is no risk of front-page headlines following a private mediation.
Custom agreements – Each party works to create an agreement designed to fit their needs. These agreements are frequently quite different from what a judge or jury might have ordered.
Maintaining working relationships – Mediation frequently paves the way for an ongoing relationship because issues are resolved in a more amicable setting. Whether in business, the family, or the neighborhood, this amicable solution and the process that achieved it may help the parties work together in the future.
HOW TO CHOOSE A MEDIATOR
Once you have decided to mediate your case rather than litigate, you must choose the right professional(s) for your dispute. Here are several important qualities in a good mediator:
Credentials: The mediators should be certified as having completed at least the basic 40 -hour mediation training, and possibly an additional 20-hour advanced mediation training, both with an organization credentialed to offer the training.
Experience: Don’t be afraid to ask the mediators about their experience handling a dispute like yours. The mediators should tell you how many years they have been in practice in their profession, whether it is law, psychology, accounting, etc. The mediators should also be able to tell you how many similar cases they have handled and approximately how long you can expect your mediation to take to reach a conclusion.
Demeanor: Arrange a personal phone conversation with the mediator, not just their staff. Don’t rely on written literature alone to make your choice. Narrow down your list of candidates to two or three and schedule a 15-minute consultation, if your schedule permits. You should feel confident in both the mediators and the mediation process before you begin.
Partnership: Some mediators work alone, but often mediators work as a team, pairing two different but complementary professions such as law and psychology, law and accounting, etc. for a team approach. Decide which approach is most appropriate for your dispute. Do you need a mediator who can help the parties understand the financial aspects of the dispute? Do you need a mediator who can help the parties overcome emotional or relationship hurdles?
IS MEDIATION RIGHT FOR YOU?
Almost every dispute can be resolved through mediation. If you have questions or need more information, contact your local county Bar Association to request a list of mediators in your area. You can also obtain a free pamphlet about mediation by calling the Pennsylvania Bar Association at (717) 238-6715.
ABOUT THE AUTHORS:
Dr. Sidney Portnoy is a licensed clinical psychologist who specializes in child and adolescent behavior. Patricia T. Brennan, J. D., is an attorney who has focused her practice on family law since 1983. Together they operate Mediation Associates, with offices in Blue Bell and Lansdale. You may reach Mediation Associates at 1-877-MED-ASSOC (633-2776) or via email at firstname.lastname@example.org.