While the fight for tort reform rages in the media between the business community and the trial lawyers, a relatively new process for resolving court litigation has emerged as a fast, effective alternative to the court room. Lawyers call it ADR, which stands for alternative dispute resolution. This process uses different ADR techniques to settle cases, which include arbitration, early neutral evaluation, summary jury trials and mediation. Mediation, however, is by far the most popular form of ADR.
Simply defined, mediation is the process when all parties to a dispute meet with a neutral third party mediator in an effort to voluntarily resolve a dispute. Normally, the mediation is held in an informal setting in a couple of conference rooms at either a private office or hotel.
The mediation starts with each party having the opportunity to make a statement of their position, which is usually non-confrontational and is followed by individual meetings between the mediator and the respective parties. The mediator is not a decision maker but, instead, acts as a facilitator, literally shuffling between both parties with offers and ideas until, hopefully, a satisfactory solution is reached.
The mediation sessions are protected by rules of confidentiality prohibiting the use of any communications occurring during the mediation from being used in court, which encourages a free exchange of ideas between the parties. If settlement is reached, the parties sign an agreement of some type reflecting the basis of the settlement. If the mediation fails, the case continues through the judicial process.
Sometimes, a failed mediation will create a framework for future settlement or reduce the number of issues that need to be ultimately litigated. Therefore, even a failed mediation is not a waste of the party’s time or money. Mediation in Mississippi came of age with the passage of the court-annexed mediation rule in October 1999, by the Mississippi Supreme Court. State court judges, for the first time, had the authority to send cases to mediation. The federal courts also require litigants to consider mediation or other ADR procedures. Many judges have exercised this authority, which has had a significant effect on reducing their trial docket.
Today, a growing number of successful Mississippi attorneys no longer question whether they will use mediation but, instead, determine how many of their cases will be mediated. Mediation has gained widespread popularity for one reason — it works, and it works well. Here is why it works:
• Fast — parties can convene a mediation conference with little notice and do not have to wait through a crowded docket.
• Inexpensive — generally a mediation occupies a day’s time and the cost of a mediator for a day’s mediation runs between $1,000 and $2,000. When compared to the high cost of litigation, this is a minimal sum.
• Confidential — mediation allows the parties to avoid the exposure to open court and the media plus, as a matter of law, all matters discussed are confidential and protected from disclosure.
• Final — a successful mediation allows both parties to bring closure to a dispute without the concern of lengthy litigation and possible appeal.
• Flexible — in mediation there are no limitations to the type of remedy to which the parties can agree.
• Successful — successful mediators settle 85% of their cases.
Any dispute or case is susceptible to successful mediation but some cases are particularly ripe for mediation. For instance, mediation is a great tool when both parties want confidentiality as in a sexual harassment case. When business entities need to preserve the business relationship and want to avoid hardball litigation, mediation is useful. In cases where the facts could be inflammatory before a jury, mediation is helpful. When liability is admitted by the defendant and the dispute is simply over the amount of damages, most judges press the parties to attempt mediation. Mediation is also effective in the family law area concerning divorce and child custody disputes.
The ADR Section of the Mississippi Bar is attempting to establish a trial program in a limited number of counties to fund mediation for family law issues where the litigants cannot afford the cost of mediation. Mediation is only limited by the imagination of the mediator and the parties in fashioning a remedy that is satisfactory to all parties and, sometimes, the parties can include remedies that cannot be awarded by juries or the court. For instance, an apology is a powerful settlement tool in some cases that is the key to final resolution of the matter.
If you become involved in the mediation process, the following tips may be helpful:
• Be patient – successful mediation, like good gumbo, takes time.
• Come prepared to spend the day and bring reading material or work to occupy your time while the mediator is meeting with the other parties.
• Do not be offended by the first offers – the settlement process must start somewhere, and the first offer by both parties is usually inflated.
• Don’t participate if you are unwilling to compromise – mediation will not work unless both parties are willing to concede some portion of their economic position.
• Listen, listen, listen – understanding the position of your adverse parties and listening to how the offers are framed can be a guidepost to point of ultimate resolution.
Mediation is not limited to the settlement of lawsuits. Many employers use internal mediation to settle employment-related disputes before charges or lawsuits are filed. The Equal Employment Opportunity Commission has an incredibly successful mediation program that has helped it reduce its backlog of charges. Businesses are using mediation to settle disputes with customers, and medical institutions are using it to settle patient claims, including malpractice claims.
As the use of mediation and other ADR techniques grows in our society, the public will become dependent upon the process for fast, effective and final settlement of disputes. Mediation may not be the ultimate solution to the question of tort reform, but it provides a successful alternative method to the courts for solving disputes.
Kenneth Milam has practiced law for more than 30 years and is a partner with the law firm of Watkins & Eager, PLLC in Jackson.