“The courts of this country should not be places where resolutions of disputes begin. They should be the places where the disputes end after alternative methods of resolving disputes have been considered and tried”. --Justice Sandra Dey O’Connor
Justice O’Connor foresaw the growing number of litigants and lawyers who are opting to resolve their disputes through mediation or arbitration rather than through the court system.
Increasingly more lawyers and retired judges are developing Alternative Dispute Resolution (ADR) practices to accommodate the increase in cases seeking resolution of their dispute outside the courts. There are literally mediators of every shape, manner or size available to settle these cases.
With the shortage of judges and the resultant backlog it makes sense for lawyers to pursue ADR. As a recently retired judge I can tell you that it made my day when I was informed that a backlogged case was removed from my list to mediation or arbitration.
Although there has been a great deal of information written about ADR in recent years, it is appropriate to remind the bar of the advantages and disadvantages of pursuing alternative dispute resolutions.
Timing can be important in deciding whether to go to mediation. When a dispute arises whether it is a commercial issue or personal injury claim there is usually a period of negotiations between the parties before litigation is instituted.
If there is not a statute of limitations problem it would make sense to submit to mediation at the outset rather than enter into an extended period of discovery, which is expensive and time consuming and allows the parties to become more entrenched in their positions. If you wait until a case is on the trial list the managing judge may be less likely to grant an adjournment and because most cases are settled rather than tried the lawyers end up trying to resolve a case under the pressure of an impending trial, which does not always end with a happy result.
The lawyer should explain the advantages, protocol and cost to his client, and the difference between mediation, arbitration and litigation to determine which fits best the client’s goal in reaching a resolution of the conflict.
The advantages of ADR are well defined.
Speed of Resolution
Every case placed into litigation enters a period of discovery which in track 2 is 300 days, and tracks 3 and 4 are 450 days. It is rare that any track 2, 3 or 4 case is ready within the allotted time. There are usually a minimum of two extensions before the case makes it to the trial list. Once on the trial list parties must await the availability of a judge, which is difficult to estimate given the shortage of judges state wide. The end result is that it may be years before the underlying problem is solved whereas many mediated or arbitrated cases can be resolved in one session.
Lawyers are not cheap, nor should they be. They bring their education and experience to the task, and use their time and expertise to try to obtain a satisfactory result for their client. That being said, litigation involves depositions, interrogatories, and other discovery techniques, as well as pretrial motions. This will take time and most lawyers bill on a time bases; thus the cost of litigation can sometimes outweigh the amount in dispute.
Party has Input in the Decision
If a matter goes to trial, either a bench or jury trial, the litigant will not have input in the decision makers’ ultimate ruling. While a party many times can only see the facts of the case through his or her own eyes, the judge or jury may take a completely different view and render a decision which the party had never anticipated. Because mediation involves consensus and compromise facilitated through the mediator each party may be able to achieve a mutually acceptable result.
Unlike litigation, mediation is not an attempt to find fault. Rather the goal is to resolve the dispute, not decide an issue of “right” and “wrong”:
This is especially important where the litigants do business together and do not want to interrupt their business relationship. Mediation offers an opportunity to come up with creative solutions not available in litigation. The non-controversial nature of mediation lessons the stress on the parties and lawyers.
Flexibility and Control
The litigants or the lawyers control the process by selecting the mediator and picking a date. Litigated matters are assigned a trial date which may not be convenient and a judge who may not have an expertise in the type of matter being litigated.
Rule 1:38 designates all court records under the custody and control of the judiciary are subject to public inspection. This means every filing made by any litigant can be reviewed or obtained by any member of the public. Although Rule 1:38 allows for certain matters to be placed under seal upon application to the court, the types of matters excluded from public view per 1:38-3 are very limited; and do not apply to most civil litigation. Information and submissions by the parties in a mediation are generally confidential as agreed to by the parties, and not subject to public disclosure.
In a lawsuit a verdict is not necessarily the end of the matter. Motions for new, appeal and retrial are always possible. This would continue the delay and cost of the resolution of the case. With a mediated settlement, there is none of that. When the case is completed it is done.
There are two potential disadvantages in pursuing mediations:
- Lack of Discovery- There are some cases where the underlying facts of a party’s position are unknown, and the opposing party is not in a position to evaluate the strength or weaknesses of their respective cases. However, in such a case the parties and the mediator can establish an expedited period of abbreviated discovery to allow the necessary information to be disclosed.
- Failure of Mediation- In this event the parties have lost some time, effort and money. However, if the litigants enter into the process with the understanding that compromise and the building of consensus are necessary elements, the mediation is likely to be a success.
Mediation is not right for all cases, some cases must be tried. But considering that most cases settle before going to trial, one wonders why more lawyers do not avail themselves mediation earlier in the process.
Getting a good result through mediation, before a party suffers extensive legal fees, with a minimal amount of stress makes for a happy client and repeat business.