AN AFFORDABLE ALTERNATIVE TO LITIGATION
o a great extent, access to the justice system is determined by economic status. The wealthy can afford experienced lawyers - the gatekeepers of the legal system - while the rest of the population may feel frozen out. With lawyers' fees typically in excess of $200 an hour, it is not hard to understand why.
One way to settle a legal dispute without going to court is to work out a solution with the help of a mediator - a neutral third party. Unlike a judge or an arbitrator, a mediator will not take sides or make decisions. Since mediation, in essence, is facilitated negotiation, the mediator helps the disputing parties evaluate goals and options and to find a solution that works for everyone. Mediators employ different strategies and techniques to resolve disputes. Some function solely to facilitate the parties' negotiation. Others evaluate matters that are important to the resolution of the dispute. This helps the parties understand the strengths and weaknesses of their positions and, if the don't reach a resolution, what the likely outcome of litigation or another process would be. When you reach an agreement through mediation, you can make it legally binding by writing down the agreement in the form of an enforceable contract. Keep in mind that with mediation, all parties to a dispute must agree to pursue that course of action. Mediation may not be appropriate if one of the parties wants to set a legal precedent or win a huge verdict against a big company. Because of the tendency in mediation to reach a deal that works for everyone, hitting a legal "jackpot" is more likely in court.
More and more, people are turning to mediation to resolve conflicts in areas such as divorce, custody, personal injury and commercial disputes. Mediation is popular because it is a quick, cheap and fair was to resolve disputes. All disputing parties feel that they are actively participating in the process and they have the power to craft an agreement that works for them. Recognizing this, courts are also beginning to require people to use mediation to settle civil suits, before the matter goes to trial.
By Alan Schapiro
Compared to a lawsuit, mediation is quick, confidential, fair and inexpensive. Mediation sessions can be scheduled in a matter of days and most sessions last only a few hours or a day or two, depending on the type if case, In contrast lawsuits often take many months, or even tears, to resolve and cost thousands of dollars. Mediation is particularly valuable when the dispute involves another person with whom - either by choice or circumstances - you need to remain on good terms. While lawsuits may polarize and ultimately ruin relationships, while still resolving a dispute.
Since a mediation is confidential, what you say during it cannot legally be revealed outside the mediation proceedings or used later in a court of law. By contrast, one of the drawbacks of going to court is that, by and large, everything said or submitted in connection with a lawsuit becomes public information. SO whether you want to protect business secrets or simply avoid washing your dirty laundry in public, your privacy will be substantially greater with mediation than with litigation.
Unless you know that the other side is willing to
mediate, expect some reluctance. If the dispute has gone very far, the
other side may almost automatically oppose anything you propose.
What then? The best way to persuade a party to mediate is to do it
indirectly. Have a mediation service extend the invitation to
mediate. By doing so you don' have to risk that the other party
takes you willingness to mediate as a sign of weakness.
Generally, when a landlord and tenant cannot agree on the rent payable during the renewal term, arbitration is the way to proceed, because this is written into the lease as the preferred process. However, mediation is far less expensive that arbitration, and a very effective way to assist the parties to reach an agreement.
Disputes which I have mediated about the rent payable during the renewal term have lasted a day and cost each party about $600. An arbitration can cost as much as $25,000, which is usually shared by the parties and can take as long as a year before a decision is made by the arbitrator. Arbitrators have a tendancy to "split the difference" and make an award that satisfies neither party. An effective way to proceed is to obtain the commitment by the parties to mediate in the first instance, and, if no settlement in concluded to proceed to arbitration. This two-step approach has the built-in incentive that an agreement may be concluded quickly and inexpensive if the parties negotiate in good faith, coupled with the disincentive that a decision will be made for the parties at some cost, in terms of money, time and relationship, of the negotiation fails.
The process of thoughtfully selecting a mediator for a particular dispute can be quite complex. Some key attributes necessary are an outstanding career history, an unquestionable integrity, the highest respect of the professional community, a judicious temperament, strong negotiating and conciliating talents, creativity and flexibility, an unflagging sense of commitment and strong mediation experience. In certain circumstances, expertise in the subject matter of the dispute may be helpful, depending on whether or not the mediator will be giving the parties an evaluation.
Mediation presents an exciting and better alternative to litigation, and one which parties are seizing upon to empower themselves rather than judges or arbitrators, to settle their disputes and mend fractured relationships/
This article appeared in the November 1997 edition of Canadian Property Management Magazine (BC Edition)
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