I have long been an advocate of various forms of alternative dispute resolution (ADR) in my personal injury practice. The main tools of ADR in the litigation arena are arbitration and mediation. Arbitration is a binding, alternative trial process. Rather than refer a dispute to the courts for trial before a judge or a jury, parties can enter into an agreement to arbitrate. Generally arbitration is a created by the contract between the parties or a negotiated agreement. In the absence of either, a party cannot compel an adversary to engage in arbitration. The benefits generally involve expediency and cost efficiency. Cases that could linger in court for 2-4 years can be scheduled at the convenience of the parties. In many cases the hearings are more abbreviated than a court trial, usually due to the fact that parties tend to pick arbitrators with expertise on their issue. Most cases can be presented with minimal testimony and the submission of records.
Mediation is a voluntary process that utilizes an experienced facilitator whose task is to guide the parties to their own negotiated resolution. Because the process is voluntary, parties failing to reach an accord can then opt for either arbitration or litigation in court. Mediation has become a popular mechanism for the resolution of personal injury and malpractice lawsuits. Complex, multi-party cases benefit most from this process. Courts are greatly attuned to the concept of mediation. In a complex case a judicial pre-trial conference is limited in time and doesn’t often afford the judge or the parties enough time to work through often complicated negotiations.
Confidentiality is another hallmark of the mediation process. Mediators will inform the parties that the process is a time-out in their litigation; and, to encourage open dialogue each should agree to certain confidentiality principles. The mediator and his/her notes should be exempt from discovery or subpoena if the process fails. The exchange of offers do not represent binding positions if the litigation resumes. A rejected settlement offer is not admissible at trial, nor represents a threshold for a potential verdict.
Dispute resolution services are offered in a variety of contexts. If there is an area of human interaction that can expect conflicts to erupt there is an ADR service experienced in that area. Mediators should be trained in dispute resolution. Many court annexed meditations utilize senior or retired judges. In addition, a number of sitting judges have become popular with the bar as mediators and will tackle a case that is not assigned to their judicial district. In the family courts experienced matrimonial attorneys volunteer to serve as special masters to resolve custody, visitation and support issues and avoid acrimonious trials. Parties contemplating divorce can opt to retain a mediator to work out their split-up in amiable fashion, and avoid expensive legal fees.
I recently has the opportunity to complete a forty hour training program in mediation offered by the Quinnipiac Law School Center on Dispute Resolution. The program is presented by Patricia Moore and William Logue, two nationally renowned leaders in the ADR field. Twenty four of us took part and were exposed to a variety of issues where this tool for conflict resolution can apply. The class was not limited to lawyers, but also included business people, realtors, health care professionals and law students. Over our five days we participated in a wide array of simulated meditations under the supervision of our trainers. Each session was followed by a debriefing session with contributions from both the instructors and class members. While talking the course I had the privilege of mediating a real life, complex medical malpractice case. The skill set I obtained in our course was put to immediate use.
Mediation can be a civilized, cathartic experience, allowing not only the dollars-and-cents of an issue to be addressed but the relationships, which are so often important but are lost in litigation.