For many years, the practice of alternative dispute resolution (ADR) has been steadily growing. The inevitable increase in the use of alternative dispute resolution has largely stemmed from overburdened courts with heavy dockets that could have litigants waiting years for resolution – and very often one that they did not agree with, or may not be practical for their situation. Arbitration most closely resembles a courtroom scenario – participants, often represented by attorneys, each present their side of the dispute before a neutral who then renders a decision.
By contrast, mediation offers participants the opportunity to have a voice in the outcome of their conflict – often proposing solutions that are unique to their particular situation. People are more likely to agree with (and follow) a plan that they helped to create. The other obvious advantage, besides saving time, is saving money. Mediations are often a much more cost effective means of resolving conflict, and can be done virtually if necessary. Mediators, depending on the nature and type of conflict, will sometimes even speak with each party privately (being careful to give equal time to both sides). This allows parties to “vent” outside the presence of the other side, and can be beneficial in allowing participants to be clear on exactly what it is they want. Mediators, however, do typically have a duty of disclosure if there are serious allegations made of abuse or domestic violence.
One of the biggest benefits of mediation is that it can be used in practically any area of law and even in cases where the disputes may not otherwise be appropriately brought as law suits. An attorney with a particular practice area or subject matter expertise can often find success mediating similar disputes. Most mediations follow a similar format – starting with opening statements by each party, followed by a focus on the central issues to be resolved. Next, the parties themselves offer possible resolutions to the conflict, and then are either able to reach an agreement or end the mediation. Since mediations are voluntary, they can end at any time. Or, often require more than one session in order to reach resolution. If an agreement is reached, it is reduced to writing by the mediator, and signed by both parties.
Types of Mediation
There are three main mediation styles used in resolving conflicts: facilitative, transformative, and evaluative.
In the facilitative method, the parties primarily control the process. The mediator simply “moves the process along” utilizing a series of open ended and reflective statements, and refrains from offering an opinion as to the resolution. The key to facilitative mediation is that the parties themselves offer and agree to the resolution of their conflict.
The transformative method, like the facilitative method, vests control over the process with the parties – they decide the flow and resolution of the mediation (if any). The mediator serves to assist the parties in understanding each other’s positions – making sure that the parties are both listening and hearing what the other has to say. Often participants use the transformative method when they have a personal relationship they would like to maintain.
Finally, the evaluative method is often used when the mediators are attorneys, since the mediator’s role is to listen to both sides and offer their opinion as to what a judge and jury may decide if the case were to be litigated. Rather than relationships, the emphasis is on the legal rights of the parties. Evaluative mediators often provide insight on whether it would be more beneficial or cost effective for the parties to proceed with a court case, rather than mediation.
As the practice of mediation becomes more regulated, many jurisdictions have minimum requirements in place – especially in order to facilitate court appointed mediations. For example, the requirement to complete a basic 40 hour mediation course is common, with additional training (typically 20 hours minimum) required for child access or divorce cases.
Many cities and localities have community mediation centers that will offer mediation training at free or reduced rates in exchange for a commitment to volunteer for a minimum number of hours per month or year. Overall, mediation training is an investment. In most cases, the basic 40 hour mediation course will cost at least $800, and additional costs are incurred for specialized training such as child access and divorce mediation. Community colleges are also great sources of mediation training, and can prove to be quite cost effective. The key is ensuring that the courses will be accepted and recognized by the appropriate court if seeking to offer court appointed (or referred) mediation services. Finally, a growing number of schools are offering Masters or even doctoral degrees in dispute resolution from such schools as Pepperdine University, George Mason, and Nova Southeastern.
In addition to the ABA, nearly every state and local bar association has a dispute resolution section, which can be invaluable sources of information, training, and networking. Community mediation centers, although often seeking only volunteers, are also excellent places to gain experience. There are also established organizations, such as the American Arbitration Association (AAA), and the Association for Conflict Resolution (ACR), that offer a wealth of information. The Better Business Bureau Auto Line program also offers the ability to arbitrate auto warranty disputes.