“Which mediator should we use,” is starting to replace the attorney’s battle cry of “I’ll see you in court.” The rationale behind the move to mediation is that as a nation we can no longer spend so much time, energy, and talent on litigation.
Historically, Americans preferred compromise to court and mediation to trial. Two of the oldest colonies, Virginia and Massachusetts, had charters requiring mediation before going to court. And the patron saint of America’s legal profession, Abraham Lincoln, counseled that a good lawyer seeks compromise and settlement before court action. Today, with 15 million lawsuits being filed per year, Congress decided to pass a law encouraging mediation – – The Dispute Resolution Act. Three hundred alternative dispute resolution centers have been established by local communities as a result of the law, and all but a handful of states have mediators and centers as alternatives or adjuncts to their court systems. Mediation is a private face-to-face meeting between disputing parties before a neutral mediator who helps them work out an agreement to resolve their dispute. The advantages are numerous. It is faster (I’ll see you in court means 1 to 3 years while mediation means I’ll see you in 1 to 3 months). It is confidential – – no press, public, or court reporters permitted. Expense is less than court. Fairness is claimed to be better in mediation than in court by participants who’ve tried both. In general, the parties find it fairer because they are the center of attention rather than the lawyers, and are less self-conscious about speaking because of the lack of judge, jury and court reporters. Greater fairness is also claimed because mediators are not required to follow legal procedure like judges are. Success is greater because compromise decisions are easier to work out and no result is reached unless agreed to by all parties.
There are those who say mediation is devalued by today’s aggressive, competitive culture – – that it will not replace litigation which is exalted by all. My belief is that mediation is a kinder, gentler way to resolve disputes and will therefore become the dominant method of resolving them. Our pragmatic democracy is tired of too many lawsuits and ready to try a different approach.