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Saturday, August 18, 2012

Mediation - Not always the right answer

When they are not in the backyard competing in potato sack races a la the Brady Bunch, my three kids fight with each other.  When a dispute arises there are various methods by which the disputes get worked out.  Kid 1 tends to get her way more than Kid 2 and Kid 3.  Notwithstanding, Kid 1 would swear an oath that Kid 3 gets her way more than Kids 1-2 combined.    When a dispute arises a common practice I employ as the judge, jury, and executioner of my family (don’t let my title impress you – if I’m the judge, jury, and executioner, my wife is the Supreme Court) is to judiciously order them to work it out.  This is stated in such as manner to suggest I really mean business.  Typically what results are more tears and arguments, and I end up having to dole out my own brand of justice anyway.

Not unlike what I do with my squabbling kids, most judges order parties to mediate their legal disputes.  Mediation is an attempt by the individuals involved in a dispute to work out their differences outside of court.  Mediation can be court ordered or voluntary.  Court ordered mediation means that the judge requires mediation to occur before the case can be tried before a jury.  Typically third-parties, such as retired judges or experienced attorneys not working on the case, serve as mediators.  Mediators normally charge for their time.  The mediator’s job is to encourage the opposing parties to compromise and reach settlement.  The mediator does not decide the case, but rather tries to persuade the parties to come together to reach an agreement.  Mediation should not be confused with arbitration.  Arbitration is a process in which a third-party arbitrator actually decides the case.  Arbitration is binding on the parties and is done in lieu of formal court proceedings.

It seems counterintuitive that parties who are entangled in a legal dispute would be receptive to court ordered mediation.  However, many cases settle at court-ordered mediation.  Experienced mediators are skilled at convincing parties to settle their disputes during mediation.  Usually this involves pointing out flaws and weaknesses in a party’s case.  Sometimes an attorney representing a client and the mediator disagree on legal issues, causing clients to second guess their attorneys.  This becomes especially problematic if the case does not settle at mediation.  Some mediators will say anything to get a case to settle and are not concerned about the fairness of the outcome.  As long as they get a signed settlement agreement at the end of the process they consider their job done.  A successful mediation often takes all day.  At the start of the day people are fresh, alert, and their defenses are up.  By the end of the day people are tired and worn out.  Because the mediation process can be akin to an extended police interrogation or a hard sell at a used car lot, it should come as no surprise that parties occasionally become disenchanted with deals that are struck at mediation.  Parties’ dissatisfaction with the mediation process unfortunately adds more ammunition to the argument against a legal system that is often maligned. 

In my opinion, voluntary mediation is beneficial because both parties go into the process wanting to resolve the case.  Court ordered mediation, on the other hand, can be problematic, and parties ought to be allowed to choose whether they want to mediate or not.  Unfortunately, my opinion in this regard carries about much weight as it does with my kids when I tell them to work out their issues themselves.

Jeff Brunson is an attorney and shareholder at Beard St. Clair Gaffney PA.  The opinions contained are his own and nothing written should be construed as legal advice.  Jeff's practice involves litigation, business disputes, and estate disputes.  He can be reached at his Rexburg office, 520 First American Circle, (208) 359-5883, jeff@beardstclair.com or follow him on Twitter @jeffbrunson.

Staff at 2:50 PM
Litigation
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