Lawyers call it alternative dispute resolution. Many of us who practice in civil litigation consider it an assault on the right to trial by jury. Mediation and arbitration are the primary methods of alternative dispute resolution. Mediations are useful and do not constitute an assault on the constitutional right to trial by jury, but arbitration in many instances is.
The difference between mediation and arbitration is stark. Mediation is a proceeding in which a mediator, usually a lawyer or retired judge, tries to help the parties find a middle ground to settle a dispute. It is a tool used frequently in family court to resolve disputes over property division and child custody and visitation. Many judges would prefer that all such disputes be resolved through mediation. Trials in family court are painful and in many cases no one leaves a trial in family court as a winner.
Mediation is mandatory in every civil case in Jackson County. Neither a judge nor a mediator can force a party to settle a civil dispute and in many instances mediation will be successful in settling cases. I don’t mind having a defense lawyer as a mediator and there are many good ones, although the best ones have experience on both sides of the fence. A good mediator can talk to the insurance company and explain the facts of life to an obstinate adjuster. Some mediators are just “mail carriers” and just carry offers and counter-offers back and forth, which is not very helpful. Other mediators choose sides in the mediation and that is fine if they choose my side, but when they choose the other side, it is not pleasant.
I always tell my client that mediation will always be helpful even if the case is not settled. First, it allows my client to hear the defense arguments through the mouth of a neutral party. I always learn something at a mediation that is helpful in advancing the case if the case is not settled.
The second benefit of mediation is that my client gets to hear the opinion of someone other than me about the value of the case. I always tell my client to listen to the mediator. I don’t always agree with him or her, but it is useful to listen to their opinions and views on the case.
A good mediator will spend time building a relationship with my client so they can gain the client’s respect. Some mediators want to order lunch as soon as we arrive at the mediation in the morning, which is always irritating because I would rather spend time negotiating. One mediator we used years ago always made us leave for lunch, which made for a long day and increased his hourly billing because he billed us while he ate lunch.
Most mediations begin with a 15-minute speech from the mediator which I have always found not very beneficial because most of the time is spent by the mediator telling my client why it is a good idea to settle the case. I have already told the client that we have to be there and why mediation can be useful in shortening the length of a case and reducing expenses, but some mediators insist on it.
The best mediators hit the ground running and begin meeting with the parties separately at the outset. I am not very patient and so listening to a speech I have heard hundreds of time is a waste of time, but I also realize that the mediator has to introduce himself to the clients.
In the early days of mediation, we always made a presentation to the mediator describing the strengths of our case. That practice has fallen out of favor. Some lawyers still like to do it but I refuse to listen because it is solely designed to intimidate my client.
We quit doing opening presentations because all it did was raise blood pressures and put everyone in a foul mood. I will never forget a defense lawyer telling my clients that their 5-year old son who died in a tragic accident was only worth $50,000. That mediation ended up within seconds of that stupid statement. I wanted to punch him in the nose. The case later settled for a lot more than $50,000.
A good mediator will not quit working the case if the mediation is unsuccessful. One very good mediator in our area never bills for his time after the mediation concludes unsuccessfully, even if it requires several phone calls. In the medical malpractice arena, where I spend about half of my time, only about half of the cases settle at mediation, but most that don’t settle do resolve after the mediation is concluded through the efforts of the mediator.
There are not that many trials conducted today. We get a report every week of every civil case tried before a jury. It covers cases in federal courts on both sides of the state line and cases from Clay, Platte and Jackson counties. It is an unusual week when more than two or three cases are reported. Most judges love a good civil jury trial, but they don’t happen very often. Mandatory mediation does work and it is useful. Thus, this type of alternative dispute resolution is embraced by almost every lawyer in the bar.
In my next column, I will address arbitration and explain why it is an assault on the right to trial by jury. Mediations are good and I will explain why arbitrations are not.
– Bob Buckley is an attorney in Independence, www.wagblaw.com . Email him at firstname.lastname@example.org.