When Mediation Makes Sense

If one or more of the following statements are true, you might be well served by taking your case to mediation. (Some of these factors—and those listed in Section D, below—are adapted from A Student’s Guide to Mediation and the Law, by Nancy H.

1. The Law Cannot Provide the Remedy You Want

Although there are hundreds of thousands of laws on the books, many types of common disputes simply do not involve a legal claim that you can take to court. Disputes between family members or neighbors often fall into this category. In these situations, no law says who’s right and who’s wrong—the parties have a disagreement, but it isn’t one that the law is equipped to handle.

Fortunately, mediation is available to you even when courts are not. For example, two sisters who owned and ran a jewelry store disagreed about who should control different aspects of the business. If they could not come to terms, the business might fail. Yet neither sister thought the other had violated her legal rights or broken the law—it was just a dispute between partners, which mediation could very likely help settle. Similarly, when a suburban homeowner found that lights around his neighbor’s driveway shone in his window at night, the law offered no solution, because no local ordinance regulated residential lighting. However, the situation could still be hashed out in mediation.

Even if you could bring a lawsuit, you may not want to because of other factors. In the example above, for instance, the homeowner bothered by driveway lights might be able to sue his neighbor for creating a nuisance. But the costs of doing so, in terms of legal fees, delay, publicity, and damage to his relationship with the neighbor, would almost certainly be out of proportion to the underlying problem. In mediation, however, the neighbors could probably work out an agreement—quickly, cheaply, and privately.

QLearn your rights before you make a decision. It’s often wise to research your legal rights and responsibilities before you decide to medi­ate. That way, you can make an informed decision about how your case might play out in court if you decide not to mediate or the mediation isn’t successful. If you do not know whether the law might provide a remedy for your dispute, you should do some research or consult a lawyer (see Chapter 13).

2. You Want to End a Problem, Not a Relationship

Does your dispute involve another person with whom—either by choice or circumstance—you need to remain on good terms? This may include family members, coworkers, your landlord, neighbors, or others with whom you have a continuing personal or business relationship. As compared to going to court, one of the advantages of mediation is that it can resolve a dispute without destroying a relationship. In fact, discuss­ing the problem face to face and coming up with a mutually acceptable solution might even strengthen your relationship—or at least lay the groundwork for better communication in the future.

Let’s face it—filing a lawsuit is almost always a hostile act. The common expressions “to be slapped with a lawsuit” or “hit with a lawsuit” accurately convey the level of combat and aggression inherent in going to court. If you are the one doing the suing, you can be sure that whatever relationship you had with your adversary before papers were served will be worse afterwards. In part, this is because your attorney, motivated by the legal necessity to prove that the other side is wrong, will use every means possible to show the other party’s guilt or liability. From the lawyer’s point of view, to do anything less could be malpractice. Even if you and the other party want to stay on speaking terms during a trial, your lawyers will likely forbid it, lest you reveal something to the other party that could jeopardize your case. The legal system is designed to be adversarial; even if you weren’t on hostile terms with the other party when the lawsuit began, you are almost certain to be enemies by the time it’s all over.

By contrast, mediation isn’t about one side beating the other, but about all parties reaching an agreed solution to a dispute. For example, in the written mediation agreement, there is no place for stating who was right and who was wrong; the agreement speaks only of who will do what by when in order to remedy the problem. It is this absence of fault­finding, plus the experience of working cooperatively toward settlement, that helps parties in mediation preserve or restore their relationship.

3. Your Dispute Is No One Else's Business—and You Want to Keep It That Way

As noted earlier, one of the drawbacks of having your dispute settled in court is that, by and large, everything said or submitted in connection with a lawsuit becomes publicly available. Only by a special order of a judge can information be “sealed” from public exposure. So whether your desire is to protect trade secrets or just to avoid airing your dirty laundry in public, you will be more likely to succeed if you handle your dispute through mediation rather than a lawsuit.

For example, if you sued your employer for sexual harassment, much of the background information both sides collect to try to harm the reputation of the other would probably be available to the public. This would include not only what was said in court, but also what was revealed before trial in “discovery” proceedings, during which you may have had to answer very personal questions about your wages, work performance, associates, and personal habits on and off the job. And your employer would likely have had to answer questions about every­thing from the company’s structure, ownership, profitability, and employee relations to whether lewd posters were hung on the men’s room walls or dirty jokes were told at board meetings.

Also, lawsuits are sometimes publicized. Newspaper and television reporters who cover the courts know where to find the information that will make an otherwise boring legal story come alive with interesting (usually embarrassing) personal details.

Mediation, by contrast, is a strictly private affair; there will be no stenographer or tape recorder. Mediators take an oath to protect the confidences entrusted to them. Many will even throw away their notes after the mediation session. And in some states, the confidentiality of mediation proceedings is additionally protected by so-called “privilege laws” that prevent a mediator from testifying in court (or arbitration) about what was said in mediation. (For more on confidentiality in mediation, see Chapter 5, Section A.)

0 Abuse won't be kept confidential. If evidence of spousal or child abuse or other criminal behavior is disclosed in a mediation session, the mediator may be required by state law or by the rules of the particular mediation service to stop the session and forward the evidence to authorities. This is one of the few exceptions to the general rule that everything said in mediation is confidential.

4. You Want to Minimize Costs

A Chinese proverb says, “Going to the law [court] is losing a cow for the sake of a cat.” While this may sometimes be an exaggeration, parties all too often lose more than they gain in a lawsuit. And certainly, when going to court is likely to cost more than the dispute is worth, it makes sense to consider other approaches.

Over 90% of your costs in bringing a civil lawsuit will likely be your lawyer’s fees, which can range from $150 to $300 per hour and up. Many contested court cases eat up literally hundreds of hours of lawyer time for both sides. For example, a basic trademark dispute often costs each party more than $100,000 in legal fees, and it’s all too common for spouses involved in contested divorce or child custody disputes to spend all the money they have, and then some.

By contrast, mediation fees start at zero for nonprofit community mediation centers (their operations are supported by tax dollars and donations), and $500 or so at private dispute resolution companies that handle consumer and business cases.

Mediation can really save you money if you would otherwise hire a lawyer for a contingency fee—a percentage (usually between 25% and 40%) of any amount you are awarded. Suppose, for example, you are hit by a telephone company’s service truck and suffer several serious injuries. If you sue the company and a jury awards you $100,000, your lawyer would take at least $30,000, leaving you $70,000. In addition to paying your medical bills (or reimbursing your medical provider), you would need to subtract from that amount many more thousands of dollars for court fees, as well as the costs of investigating and bringing physicians and other experts into court to testify. By contrast, if you can mediate the case without a lawyer, you could settle for a little less—say $80,000—and still end up with more than you would have taken home in a lawsuit. You won’t have to pay attorney fees, court costs, or expert witness fees (al­though you will have to chip in for your share of the mediation fee).

5. You Want to Settle Your Dispute Promptly

“Our civil courts can be described as parking lots for civil litigation,” Robert Coulson, former president of the American Arbitration Associa­tion, has correctly noted. It’s not uncommon for a lawsuit to be pending for two, three, four, or five years before trial. Although more than 90 percent of litigated disputes settle before trial, settlement discussions often do not get serious until a trial date is near. This aspect of the law has not changed much since 1759, when the British statesman Edmund Burke observed, “The contending parties find themselves more effec­tively ruined by the delay than they could have been by the injustice of any decision.”

Large business, consumer, and public policy disputes that might take years to resolve in court can often be processed and settled within a few months in mediation.

6. You Want to Avoid Establishing a Legal Precedent

You may want to avoid a court ruling that would set an unfavorable precedent, particularly if the chances for a victory in court are slim and the consequences of an unfavorable decision are substantial. Suppose, for example, that you and a group of neighbors want to stop a local manufacturing company from building a new factory on several acres of undeveloped woodlands near your homes. If you sue to block the company’s plans, you have only a small chance of winning under a state law designed to protect environmentally sensitive areas. However, if you lose in court, the judge’s decision might set a legal precedent that would encourage other companies to build on other environmentally sensitive areas. So, rather than risk the bad precedent, you decide to mediate with the manufacturing company in an effort to get them to abandon or modify their plans, in order to protect your woodlands without putting other areas at risk.

7. You Are Having Difficulty Initiating Negotiations, or Lack Negotiating Skills

Even though you want to negotiate a fair settlement to your dispute, you may not be able to get the process rolling. Maybe the other party is a large company or government agency that has a policy of not negotiating with individuals. In this situation, your formal offer to mediate— especially if it is made through a respected mediation service—may be enough to get their attention, especially if it carries the implied threat of a lawsuit if you are turned down.

Similarly, if you have poor negotiating skills or are intimidated by the other party, you might want to mediate. The mediator’s presence will allow you to negotiate in a safe environment and help you get your points across clearly to the other side. In this sense, the structure of mediation can often help parties who have trouble dealing with each other directly, thus reducing or eliminating the need for hired represen­tatives. In addition, the mediator will make sure that neither party is threatened, browbeaten, or intimidated.

D.