Dispute Resolution: Mediation as a First Choice
It is often said that Americans are a litigious society, that people (or their lawyers) are quick to sue for things others would call accidents. While it may seem that way because of the publicity surrounding highly controversial cases, the reality is that a very small percentage of disputes that arise are actually heard and decided by a judge or jury. There are many avenues a person can take to resolve disputes, which are summarized below. However, more frequently your legislators and court systems are requiring you try mediation first. Although mediation as a means of dispute resolution is gaining popularity, it is not well understood by the people who stand to gain from its use. This article will describe why you may want to consider mediation as a means to resolve your disputes with others.
Court Actions
If you have suffered damages at the hand of another, or stand to lose something if another takes a proposed action, you may be able to bring a civil court action to recover your loss or to obtain an order which prohibits the other from taking the proposed action. If your loss is only a few thousand dollars, you may be able to go through small claims or conciliation court. The process is simple and informal and is designed to expedite resolution of claims at lower costs to the parties.
If you cannot go through small claims court, your action may be heard by a state district or circuit court, or possibly by a federal district court. Lawsuits in those courts are governed by a complex array of procedural rules and are best handled through an attorney. Not all claims can be decided by a jury; a judge may make a ruling on his or her own. Lawsuits usually take a long time before conclusion.
Administrative Remedies
Some disputes that cannot or do not have be heard by a court initially are those where the law has provided an administrative remedy. This form of dispute resolution is most often available when you are dealing with a government unit or a government regulated activity. A neutral party, usually a government employee, hears both sides of the issue and decides the case. The process is not subject to as many procedural rules as a court case and does not take as long. The decision is usually binding, but is not necessarily a final decision. You may be able to appeal the decision to a higher authority or a court of law.
Arbitration
Arbitration is a process in which an arbitrator, or a panel of arbitrators, considers both sides of a disputed issue and renders a decision, which in many cases is final. Arbitrators may be professionals in a particular industry, or can be lawyers or other people trained in dispute resolution but not necessarily the subject matter of the dispute. Many types of contracts you are asked to sign, but which you probably don't read first, require disputes to be settled by arbitration and not by a court of law. These commonly include employment or labor agreements, credit agreements, and contracts for the purchase of consumer goods or services.
Mediation
All of the above dispute resolution techniques result in a winner and a loser. This is why many people just stew about a situation, resulting in built-up anger and resentment toward the other party. They feel that their time and effort (and money) to try to vindicate the wrong they feel has been done will go wasted. Mediation has proved to be such a powerful tool to resolving disputes, that courts in Minnesota, Wisconsin, and around the country require parties to some civil suits to attempt to mediate a resolution before the Court will hear the case.
In mediation, both parties work together, through a mediator, to resolve the problem by reaching a mutual solution. Mediation is an effective tool for dispute resolution when the parties previously had an amicable relationship and want to restore hurt feelings. It can also be helpful when the parties must continue to encounter one another, such as in a work setting or in landlord/tenant situations.
The role of a mediator is to open communication channels, legitimize each side's feelings about the case, focus on the interests of the parties rather than their emotions, and facilitate a process to explore the problem and reach a solution. The mediator will keep a check on the realities of the situation, equalize the personalities involved, act as a scapegoat for unpopular decisions, and generate options for settlement. The parties are free to formulate the settlement they wish, the mediator does not force a settlement on anyone.
You will pay the mediator's cost, but it is not necessary to hire an attorney or follow a set of lengthy procedural rules. Mediation can be well worth the cost whether or not you are seeking money from the other party, because the parties end up with the results they formulated, not that were forced upon them. Many people seek emotional satisfaction at whatever cost.
Mediation services are provided by a variety of professionals. Mediators can be certified by the State if they go through the required training, and the State publishes a list of certified "neutrals". The Yellow Pages lists mediation services. Many attorneys, school counselors, mental health counselors, and psychologists can refer you to mediators with experience in different areas.
Consider using a mediator next time you feel like "suing someone". It should be your first choice for dispute resolution.
The information contained in this article is not intended to be legal advice or to create a contract between the reader and the author. The reader is encouraged to seek appropriate legal counsel and not to rely on the information contained herein.