Keep Your Cool and Remain in Control—with Mediation.

I have been very fortunate to be able to travel around the world discussing and teaching others about the importance of alternative dispute resolution ( ADR).  When judicial dockets in many U.S. states became overburdened as budgets shrank and judicial systems were forced to do more with less, they turned to ADR as a way to reduce their caseload. I have been able to share that experience with my colleagues abroad.

Judges in many countries still have outrageously large judicial caseloads, some totaling over 2,000 cases. A judge with that kind of caseload can’t possibly hear all those cases and people wait for many years to get their cases to court, if they can get there at all. Therefore, untimely access to justice can mean no justice at all. In other countries, there is fear of, or a reality of, corruption in the justice system. Many citizens therefore just don’t go to court. The introduction of alternative dispute resolution has provided faster and more trusted access to justice for thousands of people to whom it had previously been denied.

WHY MEDIATION IS A PREFERRED METHOD OF ADR? CONTROL.

In addition to being faster and more trusted and assuring greater likelihood of access to justice, the most important reason to select mediation over other ways to settle disputes is control. The parties retain complete control over how and under what circumstances to settle. Their attorneys may explain the benefits or detriments of settlement, but ultimately it is the parties’ decision alone—not the attorneys, not an arbitrator nor panel, not a jury or judge. At the heart of mediation is the self-determination of the parties. Everyone, including the mediator, must respect the parties’ choices.

MODEL STANDARDS REINFORCE THE IMPORTANCE OF SELF-DETERMINATION.

The model standards for mediation, put forth jointly by the American Bar Association (ABA), the Society of Professionals in Dispute Resolution (Spidr) and the American Arbitration Association (AAA), lists Self-Determination as its number one criteria.

 Self-determination is defined as “ an act of coming to a voluntary, un-coerced decision in which each party makes free and informed choices as to process and outcome….” Some states, such as Minnesota, have patterned a statute after the Model Standard preamble. Minnesota Rules of Civil Procedure Section 114.02 (c) describes “Mediation” as “a process in which a Neutral facilitates communication and negotiation to promote voluntary decision making by the parties to the dispute” (emphasis added).

TO SETTLE OR NOT TO SETTLE COMBINED WITH LESS STRESS.

No matter where in the world the dispute exists, the parties should selection mediation if the parties want to exercise control over their case and explore settlement before investing in expensive motion practice, depositions, and trial preparation, and before going through an emotionally draining trial. The parties can stay in control and keep their cool, assured that any settlement reached will be by their choice, thereby avoiding many sleepless nights that can come from a protracted dispute.