Mediation and Alternative Dispute Resolution

This is the third article in our “Law for Non-Lawyers” series. If you are involved in a lawsuit, you should ask your lawyers about mediation or alternative dispute resolution. Alternative dispute resolution (“ADR”) refers to any method of resolving a claim that is an alternative to trial. ADR includes mediation, arbitration, summary jury trial and conciliation.

Mediation is the most common ADR method. Mediation is used in cases involving construction issues, business disputes, personal injury, auto accident, wrongful death, and virtually any other type of issue. Although judges sometimes order parties to mediate, settlement during mediation is voluntary. In mediation, the parties decide whether to resolve their case out of court and, if so, how to resolve the case.  This is one of the great advantages of mediation over trial.

Mediation is a formal settlement discussion that is guided and managed by a mediator.  Mediators are sometimes referred to as “neutrals” because they don’t work for either party. The mediator is typically chosen by agreement of the parties and their attorneys. Most mediators are retired judges or experienced trial lawyers. Before the mediation, each lawyer typically sends a summary of his or her client’s legal position to the mediator and sometimes talks with the mediator about the case. At this stage, the attorneys are helping the mediator understand the facts and law that control the case. In some cases, the parties decide to exchange the mediation case summaries with each other.

The mediation usually begins with a joint session with the mediator. The mediator will explain the process to the parties and have them sign a confidentiality agreement. Statements made by the parties in mediation cannot be used against them if the case goes to trial. Likewise, the mediator cannot be compelled to testify at trial about anything he or she learned in the mediation process.

At many mediations, the lawyers will then make opening statements explaining their client’s side of the dispute. The purpose of the opening statement is to let the other side know enough about the case to be willing to settle. In cases where the parties’ emotions are expected to run high, the mediator may encourage the attorneys to skip the opening statement to avoid increasing the tension and reducing the willingness of the parties to settle.

The next stage includes caucus sessions. The mediator will put each of the parties in a separate room with their lawyer.  The mediator will then meet with each side privately. What happens during the caucus sessions will depend in part on the mediator’s mediation style. Some mediators use a facilitative style and others use an evaluative style.

In facilitative mediation, the mediator asks questions of the parties, tries to discern what their ultimate interests are and tries to help the parties find and analyze options for resolving their disputes. In the facilitative model, the mediator does not push the parties to reach a resolution, but is more of a guide. The mediator will take settlement proposals back and forth between the parties.

In evaluative mediation, the mediator asks questions of the parties, analyzes the law, and tries to help the parties see the weaknesses in their positions. The evaluative mediator encourages settlement by helping the parties objectively understand the weaknesses of their case. The mediator helps each party determine its “Best Alternative To a Negotiated Agreement” or “BATNA” for short. The BATNA is the best you can do if the other party refuses to negotiate or tells you to jump in a lake. Knowing the BATNA can help a party weigh the risk of walking away from the mediation against benefit of the amount offered or demanded by the other party.

In the greater Kansas City area, the evaluative model is more common in most business and personal injury mediations. Although less common, the facilitative model is useful when the parties need to resolve more issues than just the payment of money. For example, in a slander case it may be particularly important to the victim to have the other party publicly apologize or publicly retract their slanderous statement. The victim may be willing to accept less money if his or her reputation can be restored. Most good mediators have the ability to use either model of mediation depending on what is most appropriate for the case.

If you will be mediating your case, tell your lawyer about anything other than money that could affect your interest in settlement. Your lawyer needs that information to select the most appropriate mediator for your case and to effectively represent you in the process.

At Morefield Speicher Bachman, LC, our lawyers have extensive experience representing clients in mediation. Richard Morefield is a trained mediator with experience mediating a variety of business and other issues. He welcomes the opportunity to serve as a mediator in both business and personal injury cases. He is on the approved mediator panel for the United States District Court for the Western District of Missouri. If you have questions about mediation or need a trained mediator, don’t hesitate to contact our firm.