Trial? There's a Better Way
/For almost four decades mediation has been the preferred way to settle cases.
What Is Mediation?
When people mediate disputes, they meet informally with their attorneys to explore settlement with the help of a “neutral” or mediator who is usually a judge or an attorney. Mediation is binding only if the parties reach an agreement during the meeting. The parties choose the mediator and schedule the mediation at their convenience. Usually the parties split the cost of the mediator and the fees of any administrator of the process. There are companies who provide panels of available mediators to parties, as well as individual, private mediators from which parties may choose.
Mediation in the USA.
Attempting to resolve a conflict to avoid a solution being imposed is an old method expressed in ancient history by all cultures across the globe.
In the United States, mediation became preferred over litigating to trial after 1984. At that time, United States Supreme Court Chief Justice Warren E. Burger recognized there must be “a better way”. In a 1984 speech to the ABA, Justice Burger said:
We Americans are a competitive people and that spirit has brought us to near greatness. But that competitive spirit gives rise to conflicts and tensions.
Our system is too costly, too painful, too destructive, too inefficient for a truly civilized people. To rely on the adversary process as the principal means of resolving conflicting claims is a mistake that must be corrected.
The trend toward mediation was launched and continues to this day. The percentage of filed cases in the United States that go to trial has been shrinking for decades. In 1962 of the cases filed in America, 11% went to trial. Twenty years later in 1982, that percentage dropped to 2%. In 2009 only 1.2% of cases filed went to trial.
Why Mediate Early?
Mediation fosters mutual problem solving. Trials further a win/lose environment.
Mediations are less expensive than a trial.
Self-determined solutions are usually more satisfying and actually performed more often than imposed solutions.
Mediation is private and informal. A courtroom is public, formal and adversarial by design.
A mediator is chosen by the parties. In trials, the judge is appointed by others.
Mediations result in creative solutions that could never be considered by a Court.
Mediation agreements frequently are confidential. Trial judgments are public records.
Mediations are scheduled at the parties’ convenience. A trial date is set by the Court.
Mediations involve dramatically less stress than a trial.
If the mediation is not successful, it still can serve a useful purpose. Parties learn about each other. The number of disputed issues can be reduced. The gap to eventual settlement of the entire case can be narrowed.
Know the Style of Your Mediator.
Some mediators are “directive”. This type of mediator acts more like a consultant to each side, giving opinions about the case and recommending what they should do to settle. Other mediators are “facilitators”. They spend more time identifying the interests of the parties and helping the parties explore settlement options. Both styles can produce a settlement. However, parties are more committed to facilitated settlements and express more satisfaction with the process.
Choose A Mediator Who Knows Your Industry or Subject.
Cases can be mediated with a settlement judge at the court house. However, sitting judges do not have the concentrated time offered by a private mediator. Retired judges were almost exclusively required by institutions in the past. Not today. Parties today want a mediator (whether a judge or an attorney) who is familiar with the subject matter of the dispute. Private mediation by attorneys with experience and knowledge in the area of the dispute is becoming more and more popular.
Ralph G. Martinez, Esq., Mediator. Mr. Martinez has broad experience as a transactional attorney and a trial attorney. The subject matters with which Ralph Martinez is familiar include real estate transactions and title issues in both residential and commercial fields, commercial transactions, nonprofit organizations and personal injury claims. He has been associated with both plaintiff and defense-oriented firms. Check out the listing of case descriptions handled by Ralph Martinez at Experience. Mr. Martinez has had extensive training in facilitative mediation.