By Jeffrey L. Marcus*
What is mediation?
With the continuing rise in litigation costs,
coupled with the length of time it takes to fully litigate
most complex disputes, mediation provides an effective
alternative mechanism for dispute resolution. While many
types of alternative dispute resolution techniques are
available (ie., arbitration and special referees),
mediation offers the most flexibility for the resolution
of complex disputes.
Generally, mediation is a voluntary and
confidential process through which a third-party neutral
or intermediary, usually selected by the parties,
facilitates a settlement between or among parties to the
dispute. The parties to the mediation control the outcome.
Unlike court trials or arbitration, no one imposes a
solution on a party. Simply stated, if all of the parties
do not agree to the result, the dispute remains unresolved
and litigation moves forward.
As with other forms of
alternative dispute resolution, mediation may be a
contractual deal point. After a dispute arises, the
contractual mediation clause is triggered and mediation
takes place, usually prior to the commencement of
expensive and protracted litigation. Of course, mediation
may also be utilized absent a contractual deal point
provided the parties agree to the process.
- Best time to mediate.
Except when there is a contractual mediation clause
which dictates the time to mediate, mediation should
take place as early as possible so that valuable time
and money is not wasted. However, not all disputes can
be effectively mediated when the parties are not
sufficiently informed of the points and counter points
to the claims or defenses that are at issue. It is
sometimes necessary to conduct focused discovery,
investigation and legal analysis so the parties and
mediator can be properly informed.
- Select a strong and
effective mediator. The goal is to find someone
who can talk effectively to both sides and have enough
insight, as well as compassion, to be able to
understand and resolve the dispute. The mediator needs
to have prior experience mediating the types of issues
in your case. Both sides need to respect the opinions
of the mediator. In my experience, retired judges and
justices garner the most respect and are the most
- Mediate with a goal to
resolve the dispute. Be familiar with the claims
and defenses in issue and listen to the other sides'
make successful mediations. Plaintiff's goal
is to get as much money as possible, while defendant's
goal is to spend as little as possible. In order
to bridge the gap, consider creative alternatives,
i.e., have settlement monies paid in installments over
a period of time. If necessary, the terms of the
payment schedule can be secured by an executed
stipulated judgment. Also, one may offer
non-economic terms in lieu of settlement monies.
Recently, more and more business entities and
individuals are turning to mediation to resolve their
differences. Certainly, mediation is an additional cost
component to litigation. However, once the litigation has
commenced, and the parties have solidified their
understanding of each otherís positions, it can be a
cost effective means to resolve litigation. Mediation does
not always work, however, when a case settles, everyone
benefits. One of the best things about settlement is
everyone earns the ability to move on.
This article is from a newsletter published for the interest of friends, clients and prospective clients of the
Law Offices of Jeffrey L. Marcus and should not be relied upon or considered as legal advice.
*Jeffrey L. Marcus, Esq. provides litigation services and transactional advice to the firmís clients.
He has more than 21 yearsí experience in private and corporate practices involving business transactions
and real estate. Mr. Marcus can be contacted at
firstname.lastname@example.org or at the
above address/telephone number.