George Reath, Jr., Esq. and David B. Harwi, Esq.

When a dispute gets into litigation, it becomes expensive. Fees, out-of 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 bad. Let’s look at methods of dispute resolution.

Litigation involves three phases - pleadings to frame the dispute, discovery to ferret out the facts supporting each disputant’s 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 and 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 disputes. The most common and one frequently provided for in the boiler plate of agreements is arbitration. Arbitration is a forum in 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 arbitrator acting as the truth and fault finder. Arbitration’s 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 is—or say they do. Some see it as a form of arbitration, wherein the parties present arguments to a neutral, discuss 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 own resolution.
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 fact-finding 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 can’t 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 completed 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.


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 each. Both siblings leave dissatisfied.
MEDIATION - The siblings select a mediator to facilitate their negotiations. With the mediator’s 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 solution to get what they need and each is satisfied.
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.

© Triage Mediation Services Inc. 1998

Home | Company | Services | Resources | Contact Us

Articles | War Stories | Links