Patrick Massa Law

In our last blog post, the first in this two-part post about the case for early mediation, we discussed traditional, post-discovery mediation and its role as essentially an alternative to trial.  In this post, we look at the kind of mediation we are proponents of – early mediation (we call ours “3-D Mediation”) – used either as an alternative to litigation entirely or used very early in the litigation process.

A Different, Efficient, Logical Approach – Early Mediation

Let’s consider approaching this mediation differently, starting with doing it at an earlier point in the life of the dispute: at the beginning, nearly two years earlier than traditional mediation.  Instead of an all-day event with that inherent pressure to settle at the end, imagine a mediation process that consisted of three shorter sessions, each with a clear purpose and agenda.  Think about if some of these features make sense and would be appealing to you in your dispute:

1. The parties engage in the mediation before any complaint has been filed, before the court system is involved and before the civil procedure process is initiated.
2. The mediation takes place over three shorter sessions (approximately 1.5 to 2 hours each), each designed for a purpose and with a clear agenda.
3. This a completely confidential process and there has been no public (court) filing.
4. The parties, assisted by the mediator and advised by their lawyers (if they have lawyers), are the decision makers and have control over the outcome.
5. The parties can control the tempo and the scheduling of the mediation sessions to fit into their needs and personal schedules.
6. Any necessary exchange of relevant information needed to resolve the matter through this structured negotiation is discussed, mutually decided upon in the first mediation session, and exchanged before the second session.
7. Ample opportunity for considering each party’s needs and interests, including giving each party the chance to be heard and to listen to the other party (i.e. “getting your day in court”) in a structured, controlled setting is given to the parties in the second (and if needed additional) mediation session.
8. The parties may bring into the mediation process any expert opinion assistance they need to resolve the matter. Unlike litigation, they agree to hire one neutral, independent expert jointly, they share the cost and have the value of an expert resource available to them throughout the mediation.
9. The agreed upon options for resolution, discussed and decided upon in the third mediation session, are reduced to a written resolution agreement.
10. This type of mediation process runs only as long as the parties need it to run and is faster, less expensive, more efficient, more creative in developing solutions and less draining upon the parties’ resources, time, energies and emotions than litigation or arbitration.

Concluding Thoughts:

In both scenarios, the traditional style of mediation and the early mediation, the case gets resolved through mediation.  The difference is that in the traditional litigation-based setting, the mediation settlement comes by default rather than by design, after two years of preparing for a trial that never happened.  In early mediation, the resolution is reached by intention and design because the parties and the lawyers pursue a negotiated resolution from the outset and design the process for that purpose.

The other differences are very significant and provide real value for the clients:

1. Resolution is reached in a much shorter time;
2. The cost of this early mediation is drastically less that the cost of two years of litigation followed by mediation;
3. The draining of the parties’ resources, energies and emotions is prevented;
4. The entire matter remains confidential;
5. The parties can control the time, tempo, scheduling and to a good degree, focus of the process;
6. The parties keep control over determining the final outcome;
7. The process gives the mediator, parties and lawyers the flexibility to get creative with the options for resolving the matter;
8. The parties do get their “day in court” in the sense that they will have the opportunity to say what they need to say and have the other side hear it.  (In most litigation, the parties never really get their day in court because over 97% of the cases that are filed with the courts settle and never go to trial, but they settle very late in the process.”).

Let’s revisit the first two questions asked in part one of this two-part blog post.

1. How quickly do you want to get your dispute resolved?
2. Is most of the relevant information needed to resolve your dispute the kind that is (a) freely available or ascertainable and (b) are the parties willing and able to exchange it voluntarily and without delays?

If your answers to #1 is as soon as possible and within 6 months, and your responses to question #2 are yes and yes, the logic, the common sense and the clear value of early mediation are convincing.

That is why we at Dispute Resolution Counsel, LLC offer our brand of early mediation – 3-D Mediation.  To learn more about when to use it, how it works and what it costs, we invite you to visit our website page on Mediation, and try it.  We think you’ll like it.

Listen to learn more – This is an excerpt from Michael Zeytoonian’s guest engagement on The Total Counselor radio show which aired this past March 28^th, 2017 on WCRN Radio, AM 830 with host Allen Margulis’ ongoing “Minds Around the Table” discussion.  This segment Michael talks with Allen about how Dispute Resolution Counsel’s early mediation model – 3-D Mediation – is different from the traditional model and how our 3-part mediation is a better value for those who want to get right to the resolution of their dispute.  Click on the audio link below:

The post The Case for Early Mediation; Part II of II appeared first on Dispute Resolution Counsel.

Before We Talk About Mediation and the Value of Early Mediation, Let’s Start with Two Key Questions to Ask Yourself About Your Dispute:

1. How quickly do you want to get your dispute resolved?
2. Is most of the relevant information needed to resolve your dispute the kind that is (a) freely available or ascertainable and (b) are the parties willing and able to exchange it voluntarily and without delays?

If the answer to question 1 above was as soon as possible or in less than 6 months, and the answers to question 2 were (a) yes and (b) yes, then it’s worth your while to keep reading about early mediation (and to check out our 3-D Mediation model).  If you want your dispute to drag out over at least two years and you and/or the other side in your dispute want to play “hide the ball” with what you think are key pieces of information and disclose it at that pivotal “Hollywood moment” in your case, you can stop reading now.  Rest assured you’ll have plenty of time to watch those lawyer/trial TV dramas and movies over the next few years, while your case meanders through the civil procedure process.

Here’s some background information about traditional mediation for the purposes of this article.  (If you want to learn more about mediation, please see our Whitepaper, eBooks, or other blog posts about mediation on our website.)  Mediation is an effective way of resolving disputes that are right for mediation.  It is a voluntary process, in which the parties agree upon a neutral person, usually a lawyer, trained as a mediator, to help them, and their lawyers if they have lawyers, work toward resolving their dispute.  The mediator is a facilitator of the negotiation process designed to reach a mutually acceptable resolution.  The mediator is a neutral party, cannot give either side legal advice, and cannot ultimately determine the outcome.  The dispute is resolved when the parties reach an agreement as to what the elements of the resolution will be and the terms of their agreement are reduced to a written settlement agreement.

There are different styles of mediating, some variations on the structure and the timing of the mediation.  This timing and structure of the mediation is vitally important to the parties, but they are rarely consulted about structure or timing before the mediation takes place.  This is where we go back to those initial questions and where early mediation comes into the picture.

The Traditional Litigation Track with Mediation at the End:

Most lawyers, especially litigators, view mediation as a part of the litigation process.  They see it as a step that follows other procedural steps like “pleadings” (in which one party files a complaint in court and the other side files and serves an answer), “discovery” (a formal process for exchanging information), and “motion practice” (in which both sides’ lawyers submit written legal arguments to the judge about the applicable facts and law and ask the judge to make rulings about them.

After these steps are completed (about two years or so after the lawyers were hired), lawyers will often suggest using mediation to settle the case.  This is an alternative to going to trial and leaving the matter up to an unpredictable jury to decide.  This is usually the first time the lawyers have a meaningful discussion with their clients about the mediation option.  By this time, a few things have happened that would also make the client receptive to the idea of mediation:

1. The clients, who were probably all pumped up and ready to go to war with the other side when they first came to the lawyers, are now emotionally weary of the matter and don’t want any more of their energies, resources or emotions drained by this process, but want to get it over with;
2. The clients have come to realize that their case was not the ironclad, “slam-dunk” case they thought it was at the beginning;
3. The clients do not want to spend any more time and money on this case, having done so to the tune of thousands of dollars and two years or more already, with a trial looming six months or more in the distance that will likely cost thousands more;
4. The clients are concerned about an unpredictable jury deciding this case based on things that might sway the jury a certain way, things other than the facts and the law.

Usually, by this point, there is willingness on both sides to consider mediation.  This is usually a full day event with the mediator shuttling between the parties for most of the day in a caucusing style negotiation process, controlled by the mediator.

There is another factor in this traditional all-day mediation structure.  Around 4 o’clock or so, or close to what is perceived as the end of the day, there is an unspoken, unconscious but noticeable stress the parties feel to get the matter settled that day.  They do not want to leave the all-day negotiation without having a settlement reached. This is not a pressure coming from one side or the other, but one that is inherent in this type of all-day mediation process, especially when one or more of the parties traveled a great distance to get to the mediation.  And so around 5 pm, at the end of the all-day mediation process, the parties feel they have to settle.  And they usually do.

Listen to learn more – This is an excerpt from Michael Zeytoonian’s guest engagement on The Total Counselor radio show which aired this past March 28^th, 2017 on WCRN Radio, AM 830 with host Allen Margulis’ ongoing “Minds Around the Table” discussion.  This segment Michael outlines the traditional process of resolving disputes and the associated costs of time, money and emotional resources that come with this process.   This traditional method lacks the benefit of today’s early 3-D mediation process available with Dispute Resolution Counsel.  Click on the audio link below:

Our next article – Part II of this two part series – will show how our early mediation model – 3-D Mediation – is different from the traditional model and how our 3-part mediation is a better value for those who want to get right to the resolution of their dispute.   

The post The Case for Early Mediation; Part I of II appeared first on Dispute Resolution Counsel.