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Price: A look at the past, present and future of mediation

October 5, 2016
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By Gary Price

For those old enough to recall, alternative dispute resolution began in earnest when the Indianapolis Bar Association worked with the Marion County courts to establish “settlement week.” Volunteer lawyers would review court-identified files, meet with the counsel or litigant, and attempt to achieve a settlement. It worked. Following settlement week’s success, the first “class” of lawyers went through 40 hours of training and became registered mediators. The ADR rules and, now a select but growing body of caselaw, provide guidelines for the process, and mediation has become widely accepted and utilized. For example, there is mandatory application in Marion County cases with a jury demand. Contracts increasingly include mandatory mediation clauses. Pre-suit and “early mediation” is becoming more popular. Why the success? Simply put, it works. It relieves court docket congestion, saves time and resources, and directly involves the most important players: the client/litigants. They are in control of dispute resolution; not a judge or a jury.

In the early days, mediation followed a standard model that required the mediator to adhere to the “golden rule” — the parties must decide their fate and the mediator was there to assist in the process. From a pragmatic view, this model worked well, and reflected the roots of ADR in many non-legal contexts as seen in the Better Business Bureau and community-based organizations. It also suited the need and ability of lawyers in active practice to participate as mediators along with their traditional caseload requirements.

In time this model became labeled “facilitative” mediation. But a number of factors soon began the evolution of mediation to the robust process seen today. First, lawyers began to establish dedicated mediation offices and user-friendly facilities. Second, it became apparent that most lawyers wanted the mediator to become more involved; to have the ability to critique, interact with the client and the issues; to suggest outcome determinative solutions. Third, the “value added” by mediation became more evident to lawyers and institutional clients (the best example is the liability insurance industry) as a way to control the ever-spiraling costs of litigation and the delays attendant to court determinations. This model was soon labeled the “evaluative” mediation and appears to be the predominant model today.

The newest trend is “collaborative” or “transformative” mediation. The broad notion is to take the best feature of mediation, the ability to be a self-determinant of the solution, and marry it to model in which the parties interact to a greater degree, including specific directives and requests for mediator assistance, and often engage in multiple mediation sessions. Whether the labels are justified, or even if this constitutes a “new model,” the best examples can be seen in the rapid growth of ADR, (mediation) in family law and complex litigation cases. “Family law” is obvious. A partner, or partners, in a marriage may decide to end the partnership, but the years of living in a relationship are difficult to unbind without a modicum of common respect. Complex disputes often involve parties who need to continue aspects of commercial relationships, while attempting to resolve a dispute without “destroying the village in order to save it.”

Whether experience will show one “model” prevailing or whether we have an environment where mediation is an amalgam of each type driven by the circumstances of the case, one thing is beyond dispute: Mediation is here to stay.

Yet, we must be vigilant to keep the mediation process moving in the right direction and not become “just another thing to get through.” Here are my comments about mediation today.

There is no such thing as a failed mediation. Properly approached and prepared, it is a dress rehearsal for your trial or arbitration. You can get a gauge on your case from a qualified “expert,” the mediator. Before a mediator can do her work, you must do yours. You will always learn something about your case, your client, or your adversary if you come fully prepared and committed to the process. Mediation should not become a static process, simply going through the motions and hoping for a result.

The beauty of mediation is that you have the ability to structure it to your client’s best advantage. You can call the mediator or meet and confer about your case. You can work with opposing counsel to shape the mediation to address any unique or sensitive elements of the dispute. In this regard, take a moment to review ADR Rule 1.1 and note ADR Rule 2.1’s explanation that a mediator “… assists the litigants in reaching a mutually acceptable agreement.” For the participants and the mediator, the contours of the process are limited only by your imagination, the resources you can bring to bear, and your ability (and the willingness) to work together with opposing counsel for the benefit of the respective client(s). You don’t have to have an opening session, or you can have multiple joint meetings. More lawyers are agreeing to exchange mediation statements as they would trial briefs and reply to those submissions. The possibilities are endless. (The books and articles will keep on coming.)

Finally a word to those of us who mediate: “Mediator fatigue” can be deadly, especially in recurring cases where insurance is involved. There is a tendency to take the “cookie cutter” approach. Get it in, go through the motions and expect the parties to achieve the classic “settlement that no one is happy about.” The best mediators understand this “dark side” and avoid it. The best mediators are committed to innovation so mediation, a prime tool of ADR, maintains and increases its value to the bar and the clients we serve. And the best mediators will continue to work in creative fashion to meet the goal of the process, a resolution based “… on the autonomous decisions of the parties … .” Id. Rule 2.1. Our clients deserve no less.•

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Gary Price is of counsel in the Indianapolis office of Benesch Law. He is an Indiana Registered Mediator and a FINRA mediator and arbitrator. The opinions expressed are those of the author.

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