So if mediation follows no set procedure, results in no assured outcome,
and cannot compel parties to agree unless those parties wish to do
so, what advantages are there to mediation?
- Mediation is relatively inexpensive. Seeing a case through
trial is an expensive proposition.
- Mediation is relatively swift. There
is no dearth of mediators ready and willing to assist parties whose
goal is to try to settle a matter. A quick web search will result
in hundreds of mediators and mediation websites, some specializing
in certain types of cases and some more experienced and able than
others. Mediation does not run by a clogged court schedule and sessions
can be easily scheduled any time at the mutual convenience of the
parties and the mediator, and can take place in a variety of locations.
- Mediation is relatively simple. There are no complex procedural
or evidentiary rules which must be followed. While most would
agree that a general rule of fairness applies, the maximum penalty
a party can impose for foul play is to walk away from the mediation
and take his chances in court.
- Mediation allows the parties to revise and adjust the scope
of their conflict. In a trial, initial pleadings and rules
of procedure limit the issues which a party can raise. In mediation,
as circumstances change so can the topics up for discussion.
This increased flexibility makes it easier for negotiators
to act as problem-solvers instead of adversaries.
- Mediation allows for flexible solutions and settlements.
The relief available in court is usually based on pecuniary damages,
and equitable relief is hard to come by. In mediation, however,
the parties can agree to a settlement requiring, or restraining,
action by one party which was not originally envisioned as something
beneficial to the other party.
- Settlements reached in mediation are more agreeable to both
parties than court judgments. Because any settlement arrived
at through negotiation is necessarily agreed to voluntarily
by both parties, obligations under the agreement are more likely
to be fulfilled than obligations imposed by a court.
This list is by no means exhaustive, but at least presents a framework
in which we can consider the advantages of mediation. In addition,
there is a similar list which can be constructed in which we can start
to consider some of the typically mentioned disadvantages of mediation.
- Mediation does not always result in a settlement
might spend their time and money in mediation only to find that
they must have their case settled for them by a court. Opting for
mediation, therefore, presents something of a risk. Further, if mediation
fails, much of a party’s “ammunition” might have
already been exposed to the opposing party, thereby becoming far
less useful in the ensuing trial.
- Mediation lacks the procedural and constitutional protections
guaranteed by the federal and state courts. The lack of
formality in mediation could be a benefit, as noted above,
or a detriment. Mediation between parties of disparate levels
of sophistication and power, and who have disparate amounts
of resources available, might result in an inequitable settlement
as the less-well positioned party is overwhelmed and unprotected.
- Legal precedent cannot be set in mediation.
Many discrimination cases, among others, are brought with the intention
of not only securing satisfaction for the named plaintiff, but
also with the hope of setting a new legal precedent which will
have a broader social impact. These cases are only “successful” if
a high court (usually the United States Supreme Court) hands down
a favorable decision on the main issue. Mediation is therefore
not beneficial for such cases.
- Mediation has no formal discovery process.
If one of the parties to a dispute cannot fully address the case
without first receiving information from the other party, there
is no way to compel disclosure of such information. The party seeking
disclosure must rely instead on the other party’s good faith,
which may or may not be enough.
So is mediation a good thing? Should you encourage a client to mediate
a matter rather than litigate? The answers to these questions depend
on which of the various advantages and disadvantages of mediation apply
in any given case.
EXAMPLE 1: Nora
is a long-time client of the firm for which you work. Most of her
legal issues revolve around the family-owned bakery which she inherited
from her father and which, with her at the helm, has grown substantially
in recent years. Unfortunately, spending so much energy on her business
leaves Nora little time to tend to her own affairs. As a result,
she has failed to pay rent on her house for quite some time and is
being sued by her landlord. Nonpayment of rent is a clear breach
of the lease, and if the landlord is able to prove in court that
his story is true (and it is), he will be able to force Nora out
of the house. Because Nora is very likely to lose the house if the
case goes to trial, and because she very much wants to stay in the
house which she has rented and lived in for the past 5 years, mediation
(if agreed to by the landlord) is an excellent option. The landlord
is too angry at present to respond to direct negotiation, and the
presence of a neutral party might help Nora and her landlord arrive
at an agreement. Perhaps arranging for automated payment of future
rent along with a one-time payment to cover back rent with a substantial
compensatory fee to cover attorney’s
fees, interest, etc. would be agreeable to the landlord. This would
still be less expensive than the cost to Nora of paying a real estate
broker (tenant’s pay fees in her state) and hiring movers to
pack her very large, very fragile collection of antique glass cats.
EXAMPLE 2: Nora’s
brother, Sam, is not involved in the family business. In fact, he’s
not involved in any business, but instead lives a frugal life, temporarily
residing at the house of whichever friend or sibling will endure
his snoring for the time. One day he is walking down the street when
a large chunk of iron falls and hits him on the head. Nobody seems
to know how or why the metal fell, although the company which occupies
the building claims it wasn’t their fault,
and that the construction signs they placed on the sidewalk should
have given Sam enough notice to steer clear of the area. Even while
in the hospital, Sam is already thinking about a lawsuit, and Nora
gives him the name of your firm. Robert, the attorney who is assigned
Sam’s case, is considering asking the defendant if they would
like to enter into mediation, hoping to bring this case to a swift
end. Fortunately, you are there to point out that without compulsory
discovery it will be impossible to show that the company had a poor
safety training program or other important facts which would hopefully
be gathered through the discovery process, which is available in a