Why Mediation Works
By Gareth Aden
gaden@gsrm.com

The best trend to come of our courts in the last decade is a process called “mediation,” and it is revolutionizing our civil dispute system.

Recent studies of litigants' attitudes about civil lawsuits have indicated with reliable consistency that parties (and, yes, attorneys too) more often than not leave mediation satisfied with the outcome.

Litigators’ Little-Known Secret
Trial lawyers seldom speak of a little-known secret -- a growing majority of parties in litigation end up dissatisfied, or only marginally satisfied, with the litigation results.
 
Often the cause is the substantial cost of reaching a conclusion. Deposition and discovery costs can consume a recovery. Another cause of client dissatisfaction with civil litigation is the length of time required to bring a civil claim to final resolution. For most business persons and citizens, four to five years seems far too long to resolve a civil dispute. And if there is an appeal . . . or retrial . . . .

Equally annoying and dissatisfying for parties litigant is stress. Talk to clients, and they will tell you that the confrontation and emotional bruising of a sharply contested civil suit is something they cannot forget. And, of course, if the party loses, the impact is even more devastating.

Why Mediation Works
The primary benefits afforded by mediation control and flexibility not found in the strict confines of a court of law. Mediation is most often a voluntary process (there are rare exceptions) chosen by agreement of the parties as a means of resolving a lawsuit. This choice has the effect of placing a party in control of his or her own destiny.

When a professional mediator sits down with a party to explore ways to reach a satisfactory settlement, the emphasis shifts to what the client wants and not the attorney or the law requires. Many irresolvable disputes suddenly become settled when a skilled mediator is able to strip away the legal forms of dispute and talk about personal goals and the savings in money, time and stress.  

Sometimes it is as simple as one party saying, "I'm sorry" or the suggestion of a payment schedule that will make agreement possible. I witnessed a recent mediation where a party representative expressed that his client regretted the incident that led to the suit. This simple statement was greeted with a smile and "thank you." Two hours later, the dispute was settled to the relief of all. Earlier this year a client finally agreed to mediation with reluctance because he perceived the opposition would never be reasonable. At the end of a successful day he admitted that the process works. The heart of the satisfaction is clearly that the party feels an ability to control their destiny.

Advantages of Mediation

• Cost. The reasonable cost is another aspect of mediation that makes it appealing. A professional mediator may charge between $200 and $300 per hour but this cost -- compared to the fees and costs of litigation -- is very reasonable.
  
  
• Time. The speed of the mediation process is also appealing. While trials and depositions may last days or weeks, most mediations are concluded within a day.
  
  
• Control. With mediation, each party feels that he, she, or it played a part in the process. Both parties leave believing they were afforded a fair ear by the other and settled their own differences.

Mediation works!