Meditation: A Sensible Alternative To Lawsuits
Posted by Hometownpulse | Filed under Law
MEDIATION: A SENSIBLE ALTERNATIVE TO LAWSUITS
Mediation is a process in which a neutral third party (the mediator) helps settlement discussions among the disputing parties. The mediator does not have authority to make a decision or impose a settlement upon the parties. The mediator focuses the attention of the parties upon their needs and interests rather than solely upon their legal rights and personal positions. Sometimes parties may be ordered to mediation in a court mediation program, but any settlement is voluntary. In the unlikely case that the parties do not settle, the parties do not lose their rights to a trial.
Mediation is used in a wide variety of cases with a range of complexity, from small claims and disputes among neighbors to large commercial cases and public disputes, personal injury cases, disputes involving employees, divorce, the environment, construction, consumer issues, contracts, computer technology, corporate transactions, and housing issues. Mediation can even be a resource to resolve family issues that would never involve any type of court proceeding.
Mediation is informal, dignified, quick, confidential, and much less expensive than litigation. It allows the parties to participate in the selection of the mediator who will assist them in the resolution of their case. It keeps the decision making process in the hands of the parties rather than having a judge or jury impose a decision. By lowering the intensity or level of conflict, it enables the parties to preserve a relationship.
When I was Lead Mediator in New York City Civil Court in Manhattan, there were many mediators in each division of the court. I frequently watched in awe as mediators took two people or businesses with absolutely nothing in common to an agreement that made them both reasonably satisfied.
When choosing to engage in mediation, some preparation is necessary. You should prepare to discuss the facts of your dispute and what you seek to accomplish. Each party will have the opportunity to voice concerns and to speak without interruption. The mediator will expect you to share information with her, focus on the parties’ needs and interests, and work to resolve the dispute by negotiating and bargaining in good faith.
The length of mediation depends upon the complexity of the issues and the willingness of the parties to resolve the dispute. Some mediations may last less than an hour while others may require several days. Generally, the informality and focus of mediation allows a shorter and less expensive process than full discovery and a trial.
Once the parties reach a mutually beneficial result, a memorandum of agreement may be drafted. If any partial or complete agreement were obtained it would be binding and enforceable to the extent of any other agreement or contract.
If you do not reach an amicable result, mediation typically does not affect or delay any court schedule, discovery, or trial calendar unless the parties agree otherwise and the court so orders. However, it is important to realize that mediation allows you to control your own outcome without being subject to judges’ personal beliefs.
There are many instances when mediation is an excellent alternative, here are a few:
1. There is a continuing relationship or continuing dealings between the parties.
2. Confidentiality is necessary, since there is no public record, no open court, and the results are strictly confidential (e.g. trade secrets, intellectual property, computer technology disputes).
3. The parties have time and expense concerns-mediation is fast and efficient.
4. There are concerns over who is or is not participating in problem solving.
5. There are concerns about future litigation. A Court generally awards only damages, and will generally not be able to govern future conduct. A mediated agreement is binding as a contract and can control future conduct.
6. There are a large number of claims.
7. There are repetitive types of claims.
8. No need or desire to set legal precedent.
9. The parties desire to select time, place, and manner of resolving the dispute.
10. The cost of litigation is likely to exceed the value of the dispute.
11. The dispute involves a matter to which there is no legal entitlement.
12. Neither party’s case is a clear winner.
In previous articles, we have discussed the qualifications of lawyers and a way to obtain a proper lawyer. With mediators, the same diligence is necessary. Currently, there is no licensing requirement for mediators. At the risk of being overly repetitive from previous articles, when seeking a mediator, ask questions, questions, and more questions.