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Mediation — For the Fun of It
Published 4/10/04 as
Mediation may be cost-effective
This is the column where I generate many angry letters and e-mails from some of my colleagues in the legal profession.
Not a day goes by where I do not see a newspaper article decrying the abuses of the legal system. Whether it is physicians lobbying for caps on malpractice cases to consumer advocates pointing to fee-gouging lawyers getting an $80 million fee in a $350 million dollar class action settlement where each consumer gets a check for $4.50.
These are the stories that make the headlines, but where the system is truly failing us is the five-year dispute costing each side tens of thousands of dollars in fees and costs, where the case will ultimately settle after it has been litigated “to death.” This is not even anyone’s fault, necessarily. Both sides feel they have a grievance. Their lawyers are professionally and aggressively pursuing their client’s rights, but it takes that long to reach the point where both sides have exhausted their patience and their resources and accept less than what was offered before the case was filed.
Ladies and gentlemen, the system is collapsing around us and little is being done to effectively save it.
The Illinois Condominium Property Act contains language to encourage dispute resolution, arbitration and mediation, as an alternative to litigation. I say encourage, because it is not required. Illinois recently adopted the Uniform Mediation Act. Mediation can be a cost effective problem-solving technique, especially in situations where costs must be contained.
Perhaps it is best to start out by saying what mediation is not. Currently, it is not a process forced upon anyone against his or her will. It can only work if all participants agree to accept the result of their own efforts. The mediator is neither an arbitrator nor a judge. Mediation will not create legal precedent. Mediation will not get its participants their pound of flesh.
What mediation can do is to find a solution to even the most complex dispute and not only save a relationship, but possibly strengthen it. It would seem that it would be particularly beneficial to help solve a neighbor dispute between two owners. Unfortunately, it seems like a great idea in concept, yet in most instances when it is suggested, the client rejects it because they want their “pound of flesh.”
What mediation can also do is change how most people view dispute resolution. A court-imposed result, whether by verdict or pre-trial conference, is often a dissatisfier. Rarely, if ever, will all parties be happy with the result when it is imposed by a judge. No matter how many times litigants say that they only want their day in court, unless they get everything they want and have no legal fees to pay, they will always have something to be unhappy about. If the case is settled (as 90 percent of the cases that are filed are), the parties are frustrated because they had little, if any, involvement in the process and no one had his story heard. Usually it is the lawyers who have to convince their clients that settlement is the better way to go. The client usually has to pay legal fees to their attorney even if they have been wronged by the other side. Imagine how different things would be if that dispute with the builder which costs both sides hundreds of thousands of dollars spent over five years is settled after only five days of mediation for a mere fraction of the costs.
Mediation involves a professional negotiation with the help of a disinterested, trained third party. That third party is neutral and trained to provide a focus for the parties on all of the issues and encourages them to resolve their own dispute. Needless to say, by leaving the emotional baggage on the loading dock and checking the egos at the door, aggrieved parties are going to be far more satisfied with the result they helped create themselves rather than one imposed upon them. As we all know, disputes over towing cars, removing pets, disciplining unruly children and noisy stereos are not tailor-made for the courthouse. (Neither are divorces and other types of disputes, but that is another story!)
Most declarations have a little used provision for alternative dispute resolution. This can become policy only if the other side agrees.
The mediator’s focus is to offer suggestions and hints to move the discussion away from an adversarial atmosphere by directing the discussion toward a resolution. This is a difficult job. The mediator’s task is to get the parties to put aside their emotions voluntarily and deal with the issues.
By utilizing this somewhat informal, uncomplicated approach, several things can happen: people will have a way to solve their disputes without spending more on an attorney than the amount at issue and the courthouse will not become clogged with senseless cases taking up valuable time and wasting taxpayer money. A structured mediation system can also be a boon to lawyers. They may charge less per matter, but they will have many more matters to handle.
Where the radical change must occur to save the system itself, is to make these types of proceedings mandatory. Not too long ago, smaller cases were sent out for mediation or arbitration in many counties. This approach has faded from view due to lack of funding and the problem with too many awards being rejected and the case winding up back in the courthouse anyway. With the institutionalization of training mediators, mandatory referrals and legally binding results, funding could be shuffled from court administration to mediation. Politically though, that is an entirely different issue.
For associations that are trying to be cost conscious yet stand firm on enforcing their covenants, the board should consider mediation as an effective tool to resolve disputes and settle problems. When two or more parties to a dispute all reside in the same community, it is better to have a problem resolved where everyone can come to an agreement voluntarily and shake hands.