Mediation, not trial or arbitration, is now the preferred method of dispute resolution in our justice system. The reasons are myriad:
• More than 85 percent of disputes negotiated through mediation are settled, according to statistics from the Santa Barbara and San Luis Obispo superior courts.
• Mediation is private and confidential, but litigation is public.
• Quickly resolving disputes reduces turmoil and expense.
• Parties maintain control over the process and outcome, in contrast to surrendering control in trial or arbitration.
• Creativity in finding solutions is lost with trial or arbitration.
• Experienced mediators are experts in optimizing outcomes.
• When terms are agreed upon, not forced, the parties are more likely to adhere to agreements, but if they do not, their agreements are summarily enforceable.
• Important relationships can be preserved.
• Results are achieved through collaboration.
• Parties more easily move forward once they settle.
The success of mediation led Ronald George, while he was chief justice of the California Supreme Court, to announce:
“This week we recognize the special role that mediation has in providing high quality justice and service to the public. … Studies have shown that court mediation programs save parties time and money, improve satisfaction with the court’s services, and reduce future disputes and offenses. The legislature has found and declared that it is in the public’s interest for mediation to be encouraged and used.”
All superior courts now have adjunct mediation programs. What exactly is mediation? Very simply, it is a process to facilitate settlement between disputing parties. A mediator assists parties in a dispute to reach a resolution, essentially a tailored agreement that can be enforced by a court if necessary. Skillful mediators delve beyond the immediate interests expressed by parties in a dispute to identify underlying interests and find realistic ways to satisfy them. When necessary, attorney-mediators focus on the strengths and weaknesses of legal positions to help guide parties to agreement. Mediators help find ways to reach agreement creatively.
In a trial or arbitration, the disputing sides present evidence, in a controlled and limited fashion, to an arbitrator, judge, or jury. A binding decision is made based upon the evidence and law presented. However, in mediation, the mediator does not make a binding decision. The parties fashion their own result with the guidance of the mediator. The parties are in control and free to be creative with a solution, unlike judges or arbitrators, who are limited by law to fixed remedies. The mediator facilitates a win-win resolution as much as possible with the result being enforceable.
Consider engaging a mediator whenever you are in a dispute that could result in significant financial loss or the loss of a valuable relationship. Hiring an attorney first is a good idea if legal issues are involved. Lawyers are acquainted with qualified mediators who are best at resolving legal disputes. But retaining counsel is not required, and a great many disputes are settled without resort to lawsuits.
Attorney-mediators are specifically trained and educated to qualify for court-administered programs. The highest formal levels of preparation in California include master’s and LLM (advanced law) degrees, involving hundreds of hours of education and training. It is, of course, advisable to seek mediators who have the highest level of formal preparation.
There are no laws or regulations that require the licensing of mediators, with the exception of attorney-mediators in court adjunct programs. Abuses can and do occur because anyone, including untrained lawyers, can advertise they are mediators. Consult the local Bar Association when selecting a mediator and always ask for references and a statement of training.
David C. Peterson is co-chair of the Alternative Dispute Resolution Section of the Bar Association, chair of the Santa Barbara County Bar Association ADR Section, and president of the San Luis Obispo County Bar Association. He is a full-time mediator and also an adjunct professor of mediation at Pepperdine University. Send comments via the opinion editor at econnolly@santamariasun.com.
This article appears in Sep 22-29, 2011.
