Mediation: Enriched Negotiation

There are a number of misconceptions about mediation that merit comment. These misconceptions have caused mediation to often be poorly understood, leading to its under use when it could be a very useful tool for dispute resolution. Below are a few of the common questions regarding mediation, along with some responses.

What if the mediator rules against me?
 
The fact of the matter is that mediators do not make rulings. Arbitrators and courts make rulings. Mediators assist the parties in negotiations. A skilled mediator may be able to help the parties find areas of agreement that they would not have found themselves. Mediation can be thought of as enriched negotiation. The purpose of mediation is to assist the negotiations, and could enhance the possibility that the negotiations will be successful.
 
“I do not want to get into mediation because, if I do, I’m going to have to give up something.”
 
Not so. Remember, mediation is enriched negotiation. It does not require one to give up anything he or she would not be willing to give up in negotiation.
 
There are many kinds of successful mediation outcomes. The obvious successful outcome is when parties come to an agreement that resolves their dispute. However, there are also other positive outcomes. The parties may narrow their area of disagreement which, in turn, may stimulate “homework” that will help them resolve their dispute at some future time. On the other hand, the parties may also come to the realization that they cannot resolve the dispute through negotiation and that some other method of dispute resolution is necessary. These methods include traditional litigation or arbitration.
 
There are also hybrid approaches to dispute resolution that have elements of both mediation and arbitration. The parties may come to an agreement on certain elements of their dispute through negotiation enhanced by mediation. The parties may want to submit the remaining parts of their dispute to arbitration. For example, there may be agreement that a claim is worth at least $10,000 but no more than $25,000. The parties may be so entrenched in their views that negotiation reaches an impasse. At this point they can ask an arbitrator to make a decision on how much should be paid. The arbitrator’s discretion would be limited to an amount between $10,000 and $25,000.
 
“I don’t want to go into mediation because it is too expensive.”

In fact, litigation is exponentially more expensive than mediation. Arbitration is also likely to be significantly more expensive because it typically involves discovery, including depositions and expert witness discovery, as extensive as civil litigation.
 
Think about it for a moment. A mediation may go for a day or part of a day. You have to pay for the mediator’s time as well as your own lawyer. The mediator’s fee is usually split between or among the parties. Even if the mediator schedules follow-up conferences or phone calls after the primary mediation session, the cost is usually limited to time expended.  Litigation involves months (if not years) of discovery, that usually includes searching and producing documents, answering interrogatories, and taking (as well as defending) depositions. If there are disagreements about any of this (and there usually are), discovery also involves court appearances and likely drafting briefs. There may still be other court appearances and briefs for other kinds of motions. All this still does not resolve the dispute. It culminates in a trial where a judge or jury is going to make a decision for the parties. That decision, of course, is appealable to another court or courts. All of these tasks take time and the parties pay for the time by the quarter hour. Even if the parties decide to settle before completion of the full litigation cycle, the cost up to the time of settlement can be significant.
 
Realize, however, that the size and complexity of cases also determines the value of mediation. Large, highly complex cases often take years to resolve, making litigation an inefficient and highly costly option. Smaller cases with less complex demands may not require the same resources, sometimes blurring the benefits between mediation and arbitration or litigation. Therefore, the size and nature of the case should also influence the path followed.
 
Summary
 
I would be the first to agree that mediation is not always the right choice. In fact, there are situations where there is no wonderful or even palatable alternative for resolving the dispute. All the more, in every dispute the parties need to think long and hard about just moving into litigation, because it is “the routine.” Mediation may well be either the better or, at minimum, the least onerous alternative for resolving their dispute. It certainly merits serious consideration unencumbered by misconceptions — especially in a time when money is tight for everyone.

This article was written by Jim Serritella, a 1971 graduate of the University of Chicago Law School. He has received mediation training from the National Health Lawyers Association and has had advanced mediation training from the CPR Institute for Conflict Prevention and Resolution and the Program on Negotiation at Harvard University. Jim has worked as a consultant on alternative dispute resolution, a party representative in mediations and a mediator for most of his legal career. Jim can be reached at 312/840-7040 or jserritella@burkelaw.com.