By: Harry Goldman | Mediator, Arbitrator
When I joined the WAMS mediator panel in 1986, the concept of mediation in civil litigation was a fairly new idea. It has been my privilege to have participated in the growth of what is now a key component in the litigation process.
Many lawyers were initially hesitant or openly hostile to mediation, as it was perceived by some as usurping the role of counsel. Part of my job was to explain to my colleagues that mediation was actually a useful settlement tool that could be employed by representatives of both plaintiffs and defendants to educate clients about the risks of trial and complexities of litigation. The intervening years have seen a gratifying evolution in attitudes toward mediation, as we now have court-ordered mediation in many jurisdictions. Courts such as the U.S. District Court for the Western District of Washington have implemented specific reporting procedures by the mediator to federal judges. Business contracts commonly require mediation prior to instituting litigation. Mediation and other forms of alternative dispute resolution are frequently taught in law schools. ADR seminars are regularly presented throughout the country; for example, the University of Washington conducts an annual ADR conference that draws an international audience.
If mediation is so firmly established in 2011 as part of the framework of litigation, why would I choose to discuss its relevance and importance now? I believe that mediation is beneficial on many different levels, regardless of the outcome. Of course, everyone wants his or her dispute to resolve, but parties often gain valuable information and a perspective that may not have been present beforehand in that small percentage of cases that do not settle. As a possible analogy to the mediation process, consider that computers were also in their comparative infancy in 1986 and have evolved exponentially in succeeding years. Computer users no longer need to know an intricate version of DOS to operate their systems, and few of us use more than a fraction of the computer’s functionality. We are frustrated when the computer doesn’t perform in accordance with our expectations, even if the malfunction is partly due to our failure as users to properly appreciate and contribute to the proper operation of the computer. That being said, few would deny the benefits of computers.
In a similar vein, users of the mediation process have come to assume that the mediator will succeed in achieving a settlement in every case. This is a reasonable goal as the parties are paying a considerable price for the service and coming to the table to settle the case. When the mediator is a trained professional, the participants have a right to expect that he or she will use experience and skill to craft a settlement of the dispute. It is important for all participants to remember, however, that mediation is a collaborative process that requires everyone to exercise his or her best efforts if a resolution is to be achieved. Success is defined not only by the result but also by how it is accomplished.
In order to achieve success, the mediator needs the assistance of everyone involved in the process. First and foremost, each participant, whether it is the client, the attorney, an insurance claim representative, or any other decision-maker, must be willing to commit him or herself to the effort. If someone is present only because the mediation has been court-ordered, the likelihood of success drops. If an individual is convinced even before the mediation starts of the righteousness of his or her position, believes the sole reason for the mediation is simply to move the other side, is not interested in listening to the opposition, or is unwilling to consider the potential risks of going forward to trial, mediation may not be productive. If all parties are not engaged in the discussion, the mediator’s task is much more difficult. Everyone must come prepared to do what is necessary to accomplish the universal goal of resolution and remain committed to that end.
The relevance and importance of mediation can be sustained through this collaborative effort. In this increasing era of congested court dockets and the ever-mounting expense of litigation, we must use our best efforts to achieve the optimal result for the participants. It is easy to forget that not everyone at the mediation understands the process or is familiar with the format. I always start my mediations by explaining to people who are new to the process what my role is and what the general framework of the sessions will be. I want every person in the room to know what is going on and understand what we are doing and why. It matters how the road is traveled to the final destination.
To achieve the ultimate goal of resolving a dispute in mediation, it is critical that everyone from the most sophisticated user of the process to the bewildered first-time participant become engaged in the effort. I want mediation to be relevant, not only in resolving the dispute itself, but in helping parties appreciate the risks of going forward so they will be comfortable with the outcome.
I am confident as I approach my 5,000th mediation and a quarter century of assisting others in resolving disputes that the process is even more relevant today than it was in 1986. Few people today question the importance of mediation as a settlement tool. A voluntary settlement, even if imperfect, is almost always preferable to a result imposed by a third party. Because of the ongoing commitment of everyone involved in the process, I believe mediation will continue to evolve as an effective way to help settle disputes and will still matter for many years to come.