The French philosopher Voltaire once wrote: “I was ruined but twice — once when I lost a lawsuit and once when I won one.” More recently, 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.”
Mediation use rises
An increasing number of Americans seem to share this negative opinion about our system of justice. As the volume of lawsuits filed continues to grow, beleaguered judges and court administrators struggle mightily to keep pace with ever growing caseloads, while lawyers and their clients wait impatiently (and sometimes for years) for “their day in court.”
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.
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, and the parties are not required to strictly adhere to formal rules of evidence or civil procedure.
Confidence assured
The mediation process is designed to educate the participants about the legal and factual issues involved in their dispute, so that they can fully understand both the strengths and weaknesses in their positions.
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.
The mediation process is effective because it enables 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 of the case for themselves.
If the parties do not reach an agreement at mediation, they are free to 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.
Mediation is effective in resolving many types of disputes. It is frequently used in:
- 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.
The family angle
Mediation is particularly appropriate in preserving 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. An amicable resolution reached at mediation provides a much better opportunity for this to occur than a protracted, bitterly contested trial.
Similarly, mediation may prove an equally conciliatory forum in which feuding neighbors (whether individuals or countries) can attempt to resolve their differences. They will, after all, continue to see each other after their disputes are decided (either in a courtroom or on a battle field).
Mediation provides the parties with a chance to bring their settlement discussions to a head much more quickly than if the case were to proceed through the traditional litigation process. It provides them with an opportunity to bring their dispute to a quick and certain conclusion, which can save them substantial amounts of time, attorney’s fees and litigation costs.
Perhaps most importantly, mediation can spare the parties incalculable amounts of stress, worry and aggravation. A swift, certain resolution to a dispute allows the parties to “get on with their lives,” without the ominous and foreboding cloud 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 writes and lectures extensively about the benefits of mediation and alternative dispute resolution. He can be contacted at (954) 437-3446 or e-mail at [email protected].
