The most common form of ADR is mediation. Mediation is frequently used in divorce and family law matters, but can also be an effective way to resolve business or commercial disputes. In mediation, a neutral third-party acts as a go-between to help the parties to a lawsuit reach an agreement. The mediator does not make any decisions for the parties, but rather helps the parties to come to a decision that is acceptable to both sides. Many counties will require that parties, particularly parties to family-law cases, attempt to mediate their dispute before they can have a final hearing.
Every mediator will handle the process in slightly different ways, but generally speaking mediations follow this basic pattern:
- John and his lawyer arrive at the mediator’s office and are put in a room to wait.
- Jane and her lawyer arrive slightly later and are put in a separate room.
- The mediator will go to John’s room and speak with John and John’s lawyer. John’s lawyer will make some opening remarks to let the mediator know what their side of the case is, and what the case is about as they see it. The mediator may ask a few questions to begin to get an understanding of John’s point of view on the case.
- The mediator goes to Jane’s room and speaks with Jane and her lawyer. Now Jane’s lawyer will have a chance to explain their side of the story. Again, the mediator may ask a few questions to get a feel for the case.
- The mediator will go back to John’s room and discuss on what issues the parties already agree and what the mediator believes are the core issues that need to be decided. The mediator may work with John and his lawyer to come up with a first offer.
- The mediator goes back to Jane’s room and discusses the same issues with her and her lawyer.
- The mediator will continue to go back and forth between the parties to help them reach an agreement.
This overly simplified version of events may make the mediator sound more like a ping-pong ball than anything else, but the mediator does truly serve a vital role. He or she helps the parties to get past “I WANT!” to get to, “The reason I want this is…”, And from there to “Ok, I can agree to that.” The mediator can aid in creating effective communication between people who cannot otherwise even be in the same room with each other!
The mediation process can take as long or short of a time as the parties need. However, it is common practice to “book” time for mediation in full-day or half-day sessions. Your lawyer can help you figure out how much time to block off for your mediation, depending on the issues in your case and how far apart you and the opposing party are in reaching an agreement.
At the end of the day, one of three things will have happened:
- Complete settlement of the case – this is the “best case” scenario, but also the most common. As high as 80% of mediated cases come to a complete settlement. This means all the issues of the case are decided by the parties.
- Partial settlement – this means that the parties could make an agreement on some issues but not others. For example, a divorcing couple may decide how to divide their property, but cannot agree on child custody.
- Impasse – this means that the parties cannot reach an agreement on any issues. A complete impasse is unusual.
Whether the settlement is partial or total, the agreement will be reduced to a written document called a Mediated Settlement Agreement, or “MSA” for short. The MSA will encompass all the terms that the parties are agreeing to, and will be signed by both parties (and their lawyers). There will generally be a reference in the MSA to a final, more formal document based on the agreement. For example, if a divorce case is mediated successfully, then the MSA will be turned into a Final Decree of Divorce.
In mediation, the parties are in control of their own agreement. In a trial, the judge has all the control. There are creative and more personal solutions you can come up with and agree to in a mediation context than what a judge can order. It has been said, “A bad settlement is better than a good trial.” While this may not be true in all cases, most people – even if they are unhappy with the terms of the agreement – would still rather abide by what they themselves agreed to, as opposed to something forced upon them by a judge.
Anything that happens in the courtroom is public. Either the public are permitted to be there or it becomes a public record in the court’s files. In a mediation setting, you are not “on the record”, so you are freer to vent, brainstorm, etc.
Unlike a trial, which becomes public record, nearly everything that goes on in Mediation is confidential. The mediator may not be called as a witness and any settlement offers made during the mediation process are not admissible in court.
Time and Money
In most trial situations, the parties will be limited to a certain allotment of time to present their case. In mediation, there is not generally a set time limit, other than what the parties are willing to pay as far as the mediator’s hourly rate. Also, mediation is generally a more cost efficient solution than a full litigation.
Collaborative law is another alternative means of resolving a lawsuit without the adversarial nature of trial. The basic idea is for the parties to work together to achieve a “win-win” ending. Whereas in mediation the parties are generally kept separated from each other during the process, in the collaborative process the parties and their respective attorneys come to the table to work together with a facilitator (and sometimes additional neutral professionals) to make decisions on how to resolve the case. The idea behind collaborative law is a true “team” approach. In many instances, third parties may be brought in to provide critical information to help resolve differences. For example, in a family law collaborative proceeding, a family counselor may participate, helping the parties determine what is in the best interests of minor children.
Another distinctive feature of collaborative law is that the parties and their attorneys sign an agreement to work together in good faith to reach a mutually agreeable solution without court intervention. If not mutually agreeable solution can be reached, the attorneys are dismissed from the case, and the parties must start the litigation process with new counsel. This gives both the parties and both attorneys added incentive to work in collaboration to reach an agreement.