Mediation, Arbitration, and Alternative Dispute Resolution (ADR)
The Judicial System
It is in the nature of things that disputes will arise notwithstanding best efforts of all involved. Claims will be made and will be pressed. Law suits will be filed, and feelings of animosity and betrayal will poison whatever past relationships existed. The litigants' complaint will be made subject to the laws and rules governing litigation, including rules governing jurisdiction, discovery, motion practice, and rules relating to the substantive law. Everyone lawyers up. Answers and counterclaims are filed. Threats of frivolous pleading often occur. Formal motions and briefs are filed and hearings are held with oral arguments before the judge. Discovery all too often gets out of hand. Depositions are taken, driving the parties even further apart.
The litigants will have little control of the judicial process. Neither litigant will have selected the judge. The judge will usually have been assigned randomly from the “wheel” of case assignments. The litigation will grind on. The litigants’ counsel will be required to prepare extensive pretrial orders defining in advance what evidence may be presented at trial. Counsel for both parties will be required to appear at trial calendars and for preliminary hearings, and ultimately for a trial to a jury.
The trial jury is often described as a jury “of your peers”, but the jury is not selected by the litigants. The jury is made up of the remaining candidates after striking by both sides of a panel of jurors randomly commanded to appear for jury service. The jury and the Court may have little or no experience with or knowledge of the business, science, technology or practices of the parties which gave rise to the litigation. Odds are that more than two years will have passed before the case is set for trial. The litigation costs will have been very high.
One party or the other, if displeased with an interlocutory or final ruling of the Court or disappointed with a verdict of the jury, may pursue an appeal to the Court of Appeals and from that court by certiorari to the Supreme Court. Appeals generally involve costly compilation of the extensive record of the trial court proceedings. Briefing of the legal issues is required on appeal and oral argument before the appellate court will be scheduled. Appeals can take years.
If an appeal reverses the initial trial court outcome, the case will return to the trial court for more procedure, sometimes another trial, and, well, sometimes another appeal. All of this is exorbitantly expensive and represents a huge burden on the parties, distracting them from their productive business.
The congestion of the trial courts' calendars for adjudication of criminal cases tends to take priority over civil matters, and this fact alone has caused the Courts to insist on settlement procedures, including mandatory mediation of disputes before any matter will be considered for trial.
Alternative Dispute Resolution
Obviously, an alternative to this Dickensian mockery of justice was needed. Counsel for the parties often, and sometimes early, advised their clients to enter into conversations through counsel in an effort to resolve the dispute by exchange of proposals, negotiation and compromise. This practice was necessary. Only rarely are cases resolved through application of the full legal procedure and trial.
It came to be appreciated that arbitration clauses in business contracts could assure that a known and more predictable and efficient process for resolution of disputes could be made mandatory. Arbitration clauses are routinely enforced by the Courts, and arbitration awards are routinely entered as enforceable judgments. The parties have a role in selection of the arbitrator or panel of arbitrators. The parties have some real control and achieve some very real containment of costs.
The use of mediators also became common. Unlike procedure in the courts, mediating parties retain substantial control over the cost and outcome of the dispute. The parties choose the mediator, a person in whom both sides have confidence. Moreover, the role of the mediator is limited. The mediator does not decide the case. The mediator is a neutral and serves as a facilitator. The mediator does not apply any pressure or coercion to either side.
The parties are in charge, and they make their own decisions. Mediation is designed to move the parties from a focus on their conflict to reflect on their larger interests. Either party, or the mediator, may terminate the mediation at any time. While the Court may order the parties to participate in mediation, the decision of the parties to settle or not is always a decision of the parties. The mediation process empowers the parties. The primary obligation of the parties in mediation is to negotiate in an atmosphere of good faith with full disclosure of matters material to any agreement reached.
If the mediating parties reach a settlement and agreement, it will be reduced to a writing containing all necessary and material terms. At all times, and especially in connection with reducing the agreement to writing, the parties are free to consult fully with their legal counsel. Most mediation proceedings are completed, often successfully, in a single day.
Alternative dispute resolution is a matter for specialists with proper training and a full and nuanced appreciation of the ethical obligations of the Mediator. First and foremost, the mediator must be a neutral, and should conduct himself/herself so as to confirm the neutral role he/she has. The mediator must be fair in all matters.
Mediation entails substantial confidentiality obligations binding all parties. Generally speaking, what occurs and what is said and done during the mediation remains strictly confidential. Moreover, while the mediator will often share with one side what the other side has disclosed, such disclosure occurs only with the express permission of the disclosing party. Once again, the parties are in charge.
There are still cases that need to be tried. But for most litigants, mediation is the answer. Mediation has been widely adopted by litigants. It is a highly efficient and effective method for achieving resolution of disputes.