French philosopher Voltaire once wrote, “I was ruined but twice. Once when I lost a lawsuit and once when I won one.” Warren Burger, the former chief Justice of the United States, observed, “As a litigant, I should dread a lawsuit beyond almost anything short of sickness and death.”
During the past 25 years, mediation has become one of the most popular alternatives for resolving civil disputes in the United States. Many lawyers, insurance companies, risk managers and corporate legal departments now use mediation on a daily basis to resolve claims and lawsuits as quickly as possible.
What it is
Mediation is a confidential, informal process in which all parties involved in a dispute sit down with a neutral, impartial person called a mediator, in an effort to reach a mutually acceptable agreement. The mediator helps the parties voluntarily fashion their own settlement of the dispute.
Unlike a judge or arbitrator, the mediator has no authority to render a binding decision or force the parties to accept a settlement with which they are not satisfied. And, unlike a trial, the mediation conference is relaxed and informal. The parties are not required to strictly adhere to formal rules of evidence or civil procedure.
In order to encourage the parties to speak candidly, everything that is said in the mediation process (with a few exceptions) is privileged and confidential. The parties’ settlement discussions are not shared with the judge, and they cannot be admitted into evidence if the dispute ultimately goes to trial.
At mediation, the people with the ultimate decision making authority — the parties, their attorneys, the insurance company representatives — to meet at the same time. Mediation provides these people, who have the greatest understanding of the dispute and the greatest interest and stake in its outcome, with a unique opportunity to control the outcome..
Should the parties not reach an agreement at mediation, they can pursue other options such as arbitration or trial. In either instance, the parties risk the uncertainty of having a decision imposed upon them by someone else.
A solution in many cases
Mediation is effective in resolving many types of disputes.
- Personal injury and tort claims;
- Commercial and business disputes;
- Construction matters;
- Employee grievances and labor disputes;
- Environmental claims;
- Professional malpractice claims;
- Product liability claims;
- Admiralty and maritime disputes;
- Real estate disputes involving landlords and tenants;
- Buyers and sellers and brokers;
- Lenders and borrowers in mortgage foreclosure matters;
- Homeowner association and condominium disputes;
- Partnership dissolutions;
- Employment discrimination and sexual harassment claims;
- Securities disputes;
- Dissolution of marriage cases involving parental responsibility (custody), alimony, child support and visitation issues;
- International disputes between feuding nations.
Mediation can help preserve family relationships in which the parties will continue to celebrate birthdays, holidays and other special occasions with their children for years to come. It is in the children’s best interest for their parents to maintain civility toward each other. Amicable resolutions reached at mediation provide a much better opportunity for this to occur than bitterly contested trials.
Mediation provides a chance for parties to settle their differences themselves. It gives them a chance to bring their dispute to a quick and certain conclusion. This can save them lots of time, legal fees and expenses, stress, worry and aggravation.
A swift, certain resolution to a dispute can provide the parties with “peace of mind” and the chance to “get on with their lives” without the threat of a future trial date hanging over their heads.
Bruce A. Blitman is an attorney and a Florida Supreme Court Certified Circuit, Family and County Court Mediator who practices near Fort Lauderdale, Florida. Since 1989, he has mediated thousands of disputes throughout Florida. He frequently writes and lectures about the benefits of mediation and alternative dispute resolution. He can be contacted at (954) 437-3446 or at BABMediate@aol.com.