MEDIATION: THE COST-EFFECTIVE WAY TO RESOLVE DISPUTES
George Reath, Jr., Esq. and David B. Harwi, Esq.
a dispute gets into litigation, it becomes expensive. Fees,
pocket costs and time are expended in an environment
where the outcome is unpredictable, at best. For the parties,
the experience is seldom fun. It does not have to be that
Lets look at methods of dispute resolution.
Litigation involves three phases - pleadings to frame the dispute,
discovery to ferret out the facts supporting each disputants
claims and trial to have a third party find the truth regarding
the historical facts and allocate fault. Truth may be a function
of the skill of the lawyers presenting the facts
to the fact finder or the credibility of a liar. When confronting
this arena, more than 90% of disputants decide that the uncertainty
of the process necessitates settlement of the dispute. Unfortunately,
the settlement occurs only after substantial process costs
time and may not be what any of the disputants desire.
In recent years participants in the litigation system have
proposed more frequent use of alternative methods to resolve
The most common and one frequently provided for in the boiler
plate of agreements is arbitration. Arbitration is a forum
which the disputants participate in the selection of the fact
finder and the time table for events to occur. Like litigation
arbitration is an historical development of facts with the
acting as the truth and fault finder. Arbitrations procedures
and rules are less formal but the costs and time associated
with the process may not be significantly less than litigation.
Furthermore, the disputants still face the uncertainty of result.
Yet another form of alternative dispute resolution is mediation.
Most people involved in the American legal system know what
mediation isor say they do. Some see it as a form of
arbitration, wherein the parties present arguments to a neutral,
the issues with her, sometimes in the presence of the other
parties, sometimes in a separate room, and seek the guidance
of the neutral in framing a resolution. Others see mediation
as facilitated negotiation, wherein a neutral helps the parties
to identify their interests, discuss them in the presence of
the other parties, or sometimes separately, and work out their
Mediation properly done offers the disputants the opportunity
to vent their anger and communicate clearly their interests
and needs rather than their positions in the dispute. Unlike
arbitration and litigation which always involve historical
and ultimately faultfinding, facilitative or transformative
mediation is a forward-looking process. The ultimate question
to the disputants is What are we going to do if we cant
resolve this dispute? The absence of extensive fact-finding
substantially limits the need for discovery - usually the most
costly part of any significant lawsuit. The process can be
in a matter of hours or days, depending on the complexity of
the matter. Mediation is therefore almost always substantially
less costly than arbitration or litigation. A day of mediation
may result in resolution and cost less than one day of depositions.
Mediation is non-binding (until the disputants themselves commit
to an agreement). It allows the disputants to frame the process
by which resolution is sought, privately, on their own timetable,
in confidence if desired. Most importantly the parties, not
a third party, can decide what the resolution is to be. The
resolution may have nothing to do with the immediate dispute.
Furthermore, if the mediation fails the disputants can always
return to slugging it out in court. But the process seems to
work when the disputants approach it openly and in good faith.
EXAMPLE OF MEDIATION
A simple example may be helpful here. Two siblings are fighting
over ownership of an orange. Each claims the orange.
LITIGATION AND ARBITRATION - Their parent, a
fact finder, upon hearing the siblings demands and bases
for ownership, cuts the orange in half and gives a half to
Both siblings leave dissatisfied.
MEDIATION - The siblings select a mediator to
facilitate their negotiations. With the mediators coaxing
the siblings learn that one needs the pulp to make orange juice
and the other needs the skin for a recipe. They work out a
to get what they need and each is satisfied.
USES OF MEDIATION
Mediation has broad applicability. Unless a court is needed
to establish a principle of law affecting the disputants, mediation
should be considered. In particular where the disputants have
had a relationship that they want or need to continue, mediation
works. Mediation can defuse potentially serious disputes in
institutions which depend on continuing relationships with many
constituencies: consider the value of mediation in issues such
as intra-faculty disagreements, medical staff disagreements
with hospital administrations, claims of sexual harassment or
discrimination and many more. A non-binding effort to meet budding
areas of disagreement head-on at an early stage will yield less
litigation, less disruption and lower cost. Mediation works.
Mediation Services Inc. 1998