Mediation ... An Easier, Softer Way
Excerpted from the Bar Association of Erie County Bulletin (Nov 95)
I love mediation. I believe in mediation as a viable alternative to litigation. Mediation is not a panacea for all manner of disputes and disputants. Certain issues require a full hearing and a judicial determination. Certain disputants present a need to engage in protracted litigation to punish their opponent and/or "have their day in court" in order to disgorge their story. This mentality is analogous to Primal Scream Therapy popularized in some counseling circles.
Mediation represents another tool in the flexible attorney's belt to assist human beings through a difficult phase in their life to a new beginning. As a lawyer or a mediator, I view myself as a change agent, not a change master. I am not sufficiently omnipotent to know the choices which are right for my clients and impose my will upon them.
MEDIATION BENEFITS
Before I was ordained an attorney, I was a counselor and psychology teacher at The Nichols School. For me, mediation was like putting on an old suit. But I am no longer limited to asking a client to "reframe" an issue and find the positive. I am grateful for the legal knowledge and talents which I can now combine with my listening and observational skills.
More often than not, and across a diverse range of issues, mediation provides an easier, softer resolution to conflict than litigation. The mediation process is generally faster and less costly, financially and emotionally. The parties are encouraged to discuss relevant issues and alternatives directly with each other. Mediators monitor and facilitate this process with constructive feedback and creative alternatives. The mediator strives to maintain neutrality, but actively participates in the creation of a mutually satisfactory resolution.
Mediation is not "touchy-feely" counseling. Issues related to blame, fault and guilt must be referred to a counselor. In order to facilitate open and full disclosure, where appropriate, the mediator will refer other issues out for valuation by appraisers and accountants or other experts. Good will is difficult to measure and value, but mediated parties are general more cooperative with each other upon the conclusion of mediation. In addition, because resolutions are mutually created and agreed upon rather than imposed, compliance is greater than secured through litigation.
MEDIATION APPLICATIONS
I urge you to think creatively. In whole or in part, mediation can enable people in conflict to resolve, secure a new beginning and continue their modified relationship. Real estate transactions which are in danger of falling apart, certain probate matters where beneficiaries are battling among themselves, and certain contract disputes present opportunities for the attorneys representing the parties to refer a specific portion of the matter out for mediation. The attorneys may consult with and advise their clients in or outside of the mediation process. Upon settlement, the parties revert back to heir attorneys for closure. I believe almost every attorney has at least one file, on or about their desk, where you know that if you could just get the parties to talk to each other, the matter could be resolved. Certain other files contain matters where you know, economically, the cost of litigation far exceeds any possible financial gain. In other cases, you know both parties would benefit if their relationship could be repaired and continue, such as in a supplier-consumer or parental relationship. The question is, are you best servicing your client by encouraging the pursuit of a win-lose, good-guy bad-guy scenario where any future relationship is terminated upon the completion of litigation? Referral of a matter to a skilled mediator makes it economically possible to resolve those one or two sticking points and salvage a mutually beneficial relationship without removing you from the process. Mediation is commonly associated with divorce, but this process is being applied successfully to business/commercial conflicts, environmental disputes, education institutions, the criminal justice system, and labor-management at both the local level and internationally.
MEDIATION ORGANIZATIONS AND CYBERSPACE
Mediation is not limited in time and space to a room with a round table. New electronic networks offer major opportunities for the resolution of disputes in cyberspace. On-line mediation enables parties to conference at convenient times without the cost and inconvenience of travel. The sessions can commence and end at the convenience of the parties. It is also possible to consult experts if necessary. A comprehensive archival record of the history of the dispute is made and may be referenced to evidence each side is being heard, and show cooperation and compromise. This record also helps keep the parties focused and honest.
The Internet and the World Wide Web provides a host of services and resources related t0 mediation and other alternative dispute resolution mechanisms. The Institute for Global Communications (IGC) (415-442-0220) is a world-wide community enabling people to confer across a variety of alternative dispute resolution areas. For example:
These are just a few of the dispute resolution resources available in cyberspace.
Many mediation and dispute resolution organizations are available for training, seminars and resources. The American Bar Association (ABA) in conjunction with the American Arbitration Association (AAA) an the Society of Professionals in Dispute Resolution (SPIDER) collaborated and in 1994 established the Model Standards of Conduit for Mediators. The Section of Dispute Resolution of the ABA was established in 1993. SPIDER (202-783-7277) is an international organization founded in 1972, to advance and represent the interests of third party neutrals who serve as dispute resolvers, and to enhance the capacity of parties in conflict to achieve rational and equitable solutions without violence or litigation.
Closer to home, The New York State Council on Divorce Mediation (800-894-2646) provides a forum for the discussion of issues relative to accreditation and professional development, and works to stimulate greater public awareness of divorce mediation. Locally, the Bar Association of Erie County has established a Mediation subcommittee of the Alternative Dispute Resolution Committee, chaired by Krista Gotlieb and Steven Sugarman. In addition, the Western New York Association of Divorce and Family Mediators, chaired by Charlene Brumley (716-839-0040) was recently established to provide information and education regarding divorce and family mediation to the public, other professional groups, the legal community and the court; to promote the use of mediation and to establish standards and ethics; and to provide education and peer consultation for mediators.
CONCLUSION
Chief Judge Judith S. Kaye's Special Commission on Alternative Dispute Resolution (ADR) is a two-year project established to examine the possibilities for streamlining litigation by complementing existing court procedures with an expanded menu of ADR options. Judge Kaye has stated that
In this era of huge litigation volumes, exploring the potential for alternative dispute resolution mechanisms has never been more important. The cost of litigation today--emotional and financial--is often so high that at its conclusion, it is hard for either party be a winner.
In the coming months, a variety of mediation articles will be presented for your consideration. I hope you share my curiosity in learning more about the creative application of the mediation process to traditionally litigated issues of human conflict.
Timothy J. Mordaunt is a Grand Island sole practitioner and a mediator with Buffalo Mediation Associates, Amherst.
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