An Introduction to Alternative Dispute Resolution
Commercial disputes both big and small are bound to happen and will likely be a part of the future of all businesses. Whether that dispute is a mere annoyance or full-blown nightmare and financial disaster may well hinge on how the parties to the dispute seek to resolve their differences.
Many business owners and executives are at least minimally familiar with litigation, or the “I’ll see you in court” variety of dispute resolution. Indeed, our society has a long and storied history of cases in which parties and their attorneys are engaged in a struggle to convince both judges and juries that they are right and that they should win. But at what cost?
One of the most significant sources of frustration we hear from parties locked in the grips of litigation, aside from complaints about seemingly endless costs and delays and inexplicable, complicated and archaic procedures and rituals, is that it actually prevents resolution and denies the opportunity for those involved in the dispute to “tell their story” as to how the dispute came about and how it has affected them. They feel that the process and artful lawyering have displaced the merits of the underlying dispute. For those stuck in the adversarial model of litigation where the focus is on clobbering one’s opponent into submission with well pled accusations, motions and discovery, even those who have initiated the litigation with great righteousness and fervor, can often be heard wondering aloud “isn’t there a better way.” To most who endure the multi-year process from pleadings through trial, whether they “win” or “lose” the litigation, the outcome is not one of overwhelming elation or even satisfaction, but one of relief for having survived the process.
With this blog we will engage in a conversation about alternatives to litigation, more specifically, the alternative dispute resolution process known as mediation. For some this will be an introduction to a novel way to resolve disputes; to others it will be a reintroduction or reminder that there is a very effective way in which disputes can be resolved that does not involve court sanctioned combat and the collateral damage to businesses that so often results. We will pull from our experience, education and training to explain the benefits and unique qualities of mediation and how you can get a mediation started. From time to time we will be posting discussion on new dispute resolution developments, our experiences, tips and other anecdotes.
Why Mediation is a Good Option
When individuals and businesses find themselves in disputes, whether they are already in litigation or are headed in that direction, mediation should be considered by the parties involved in the dispute if they value any one or more of the following attributes of a non-litigated dispute resolution:
- Saving time, money and business resources, which are all expended in great measure in court battles.
- Private and confidential negotiations facilitated by an experienced neutral whose sole goal and interest is in assisting the parties in resolving their dispute.
- Exploring and creating resolutions to disputes that a court/judge cannot provide to either of the parties.
- Preserving personal, customer and business relationships by avoiding painful and destructive adversarial procedures which is the hallmark of the litigation process.
- Avoiding the uncertainty of an extremely expensive court imposed outcome rendered by an individual judge or jury which may not have even understood or heard the issues of your dispute though you have paid dearly for the opportunity to have “your day in court.”
How Do You Initiate Mediation?
Parties to a dispute may find themselves in a mediation in a variety of ways. Generally speaking there are three possible roads which may lead disputants to the mediation process. Those roads, in no particular order, are as follows:
1. By Contract
The parties to a dispute may have a written contract which may contain an alternative dispute resolution (commonly referred to as ADR) provision requiring the parties to resolve their disputes through a non-litigated process, including mediation. If this is the case, the parties may be required to submit their dispute to mediation prior to commencing litigation to resolve their dispute. These types of provisions are routinely upheld and enforced by courts so much so that a party seeking to bypass mediation when the contract under which the dispute has arisen contains a mediation provision, will be ordered by the court to proceed to mediation.
2. Court Sponsored Mandatory Mediation
In some cases, the court in which the disputing parties have filed a lawsuit may actually have a mandatory program under which all parties to the litigation must submit to mediation. Other courts or individual judges may merely strongly urge the parties to submit their pending litigation to a mediator. Because these mandatory court ordered mediations are by definition not voluntary, they are somewhat less effective in achieving settlements between the parties.
3. Voluntary Submission to Mediation
Just because there may not be a contractual obligation requiring the disputants to submit their dispute to mediation or a court order that the parties mediate, this does not mean that parties to a dispute may not seek to have their dispute resolved by a mediator. In fact, disputing parties are free to agree among themselves to try the mediation process at any time even if they are in the middle of a long court battle. The parties to the dispute and/or their counsel may simply enter into an agreement to mediate their dispute, select an appropriate mediator, and embark on the mediation process to resolve their dispute.
Choosing the Right Mediator
When considering whom to select as the mediator of your dispute, whether you are in litigation or not, it is essential to consider the qualities that make a good and effective mediator. Of course, initially, you will want to confirm that your prospective mediator has had appropriate training in the craft of facilitating resolutions to difficult disputes. An effective facilitator, which is essentially what a mediator is, has behind him or her much more than just book learning though, and your selection process should not end with a list of candidates who have taken courses in mediation. Because the work of a mediator, particularly in the context of commercial disputes, often requires the mediator to assess, along with each party, what might lay ahead in the event a resolution is not reached, the mediator should bring with him or her experience advocating on behalf of people and businesses like yours through litigation, arbitration and mediation: someone who has “been there” advocating for clients just like you. Only someone who has shared the long, stressful and costly road through litigation with clients hundreds of time over truly understands the many pitfalls, uncertainty and risks inherent in litigation, and the opportunities presented by mediation. There is also no substitute for the experience of having ushered hundreds of clients through highly adversarial litigation in developing empathy for the participants, which is a requisite quality of a good and effective mediator.
If all parties to the dispute have a good faith interest in resolving their dispute, a mediator with years of litigation experience is well equipped to assist the parties and their counsel with assessing the alternatives to a mediated resolution. In short, this mediator is someone who knows where you will likely “go from here” if a facilitated resolution through the mediation process is not achieved.
If you and/or your attorney wish to learn more about the benefits and advantages of resolving disputes with the assistance of experienced mediators, we can help you.
Theodore Adler, Founding Partner
Reager & Adler, P.C.
2331 Market Street
Camp Hill Pa. 17011