Monday, January 24, 2011

Who Knew How Cool Mediators Really Are?

With the premier last week of “Fairly Legal” on USA Network (Thursday nights at 10/9 Central, mediators are now in the legal drama spotlight!  Who knew mediation was cool enough for its own weekly TV show?

While the show certainly dramatizes what mediators do – like Kate Reed (the lead character) stepping in between the gun toting robber and bat wielding store clerk during a hold-up – there are many things “Fairly Legal” depicted that are on point: Kate’s desire to help people; the wide range of disputes that mediators can help resolve; and the fact that getting people to work together is almost always more effective than litigation. 

I must take issue, however, with the way the show portrayed the judge’s attitude towards mediation.  With obvious venom, he tells the parties to a lawsuit that, “Kate Reed is not a lawyer.  She is a mediator.”  Of course, her running into court late and throwing her jacket aside as she approaches the bench doesn’t help her cause.  The judge - through his tone, saying Kate quit the profession and has nothing but “disdain for the law,” sending what he clearly deems as a less deserving claim to mediation, and limiting her time to resolve the matter - gives the impression that mediation is something below the legal system.  In my experience, judges like mediators, are supportive of the ADR process, and encourage litigants to take advantage of the skills mediators bring to the table to help them get their cases resolved (and thus off the court’s docket).  I guess exchanges like this help create the “drama” that keeps viewers’ attention.

I am glad the USA Network is showing “Fairly Legal,” and I hope the show is successful.  Any publicity that mediation can get is a good thing.  The more people see that there are alternatives to the lengthy, expensive and acrimonious litigation process; the more likely they are to ask questions and seek alternatives for resolving their disputes.  Educating people to their options, even through a dramatic representation, is never a bad thing.  

Mediation Clauses - An Attractive Option

Over the last several years, the issue of “tort reform” has received significant media attention.  This is particularly true in election years, when advocates on both sides of the debate try to shape a platform that too often gets pigeonholed as either “pro business” or “pro consumer.”   The debate often surrounds the enforceability of arbitration provisions included as a matter of course in all kinds of contracts.  These provisions typically require the parties to agree not to pursue litigation to resolve any disputes that arise regarding the enforcement of the contract.  Instead, the parties agree to a binding arbitration process, usually with arbitrators who are familiar with the industry involved in the contract.

The divergence of opinions on binding arbitration clauses is easy to see.  Typically, businesses on one side are, rightfully or not, afraid of facing a jury to decide their responsibilities under a contract.  On the other side, consumer advocates argue that taking disputes away from a jury and instead handing them to an industry insider to come up with a resolution tilts the playing field unfairly.  Millions of dollars have been spent on both sides of this argument, and our courts routinely have to rule on the applicability of these provisions.  Not surprisingly, the body of case law that has developed is varied and confusing.  Every year, legislatures across the country debate tort reform bills, and most major legislation proposed at the national level attempts to bring some degree of tort reform into the process.

One easy and less controversial option businesses should consider including in their agreements - whether consumer contracts, leases, vendor agreements, employment agreements, etc. – is a mediation clause.  Unlike an arbitration provision, the mediation clause gives the parties an opportunity to resolve a dispute without waiving rights or agreeing to a binding process that may appear unfair to one side.  Mediation is an attractive option to both sides – providing a fast and cost effective alternative that encourages the participation of all parties to resolving disputes.  If the parties agree at the outset that mediation is the proper vehicle for resolving any claims that arise under the contract, they are likely to participate fully and success is highly likely.

Further, a mediation provision can be backed up by a clause stating that if mediation is not successful, then the parties agree to binding arbitration; or that if a lawsuit ensues after mediation, the prevailing party may be entitled to legal fees or costs being paid by the opposing party.  However, if everyone agrees to mediation at the outset, follow-up arbitration or cost shifting will very rarely come in to play.

In addition to being easier, faster and less expensive than litigation, mediation is non-adversarial. Decisions rendered by an arbitrator or judge usually determine a “winner” and a “loser.”  In mediation the parties seek a “win-win” outcome and retain control of the process. The parties shape the terms of the settlement.  We strongly encourage businesses of all types to consider including mediation provisions into their contracts – a better resolution is almost guaranteed.

A Mediation Primer

Alternative dispute resolution (ADR) is a method of resolving disputes without going to court.  It provides a less formal and more expeditious way of reaching a consensus, and is often significantly less expensive than going to trial.  Dispute resolution methods include arbitration and mediation.  Our firm offers mediation services.
Mediation is one of the most popular alternatives for resolving civil disputes in the United States. Many lawyers and businesses now use mediation on a day-to-day basis to help resolve claims and litigation as quickly and efficiently as possible.  Mediation can be a voluntary process between the parties, or ordered by a judge as an alternative to proceeding with a trial. 
Unlike arbitration and litigation, mediation is confidential, and the mediator, a neutral third party, does not actually issue a binding decision in the matter.  Instead, the mediator facilitates discussion between the two disputing parties and assists them in resolving the dispute by providing a forum to communicate openly.  When necessary, the mediator serves as a resource to propose creative solutions based on experience and points of law.
Mediation works for many types of disputes – business and commercial claims, divorce and family disputes, tort claims, contract enforcement, partnership dissolution, estate claims, etc.  In reality, any type of dispute can be resolved through mediation if the parties agree to participate.   A lawsuit does not have to be filed to take advantage of mediation – and the size of the dispute does not matter.  Mediation is a cost effective and efficient way to resolve disputes.
Mediation has many benefits over litigation:
Litigation frequently takes a long time.  If the case goes to trial, it can be a year or more before a final verdict is reached.  Mediation is usually much faster than litigation as there is no waiting for a court date. 
Mediation promotes harmony. Because the parties are working together to reach an agreeable outcome, both parties are more likely to leave satisfied because they have agreed upon the outcome. 
Compliance is more likely.  Parties who have reached their own agreement through mediation are more likely to comply with the terms. 
Mediation is more comprehensive. Court trial verdicts generally only address the legal issues.  However, in mediation, other non-legal issues can be addressed and resolved as well. 
If the parties cannot resolve their dispute through mediation, they may have to ultimately proceed to arbitration or trial to obtain a resolution.