by Lawrence R. Maxwell, Jr.
Disputing parties typically want to resolve their dispute quickly, control the outcome, avoid litigation and discovery battles, control costs and scheduling, maintain relationships, and avoid publicity.
Mediation and the collaborative dispute resolution process (commonly known as “Collaborative Law”) are processes that parties can use to meet these goals. Both processes focus on assisting parties in settling a dispute before it is submitted to a court, arbitrator, or other adjudicatory tribunal.
For years, mediation has been the Alternative Disputer Resolution (ADR) process of choice for resolving disputes arising in all areas of civil law. Collaborative Law is a relatively new kid on the block, having its roots in family law. The process is now being used for resolving disputes arising in many areas of civil law, and is particularly helpful when maintaining ongoing relationships is important.
The processes are similar in some respects. Settlement negotiations are confidential; and depending on the timing of the use of the process, disputes can be resolved quickly and economically. The processes differ in some respects, however, both processes can save time and money and people.
Mediation: A mediator is a third-party neutral engaged voluntarily by the parties, or appointed by court order, to facilitate communication and assist the parties in developing a mutually acceptable settlement. The parties may or may not be represented by counsel.
Negotiations can be adversarial and employ positional bargaining, or interest based and focus on the concerns of the parties. A mediator has no mechanism for requiring the production of relevant information. The parties may or may not engage in face to face meetings.
Mediation is usually a one day event, that occurs just before trial, after expensive and time consuming discovery is completed. The parties have spent lots of money and time, and may be more adversarial than they were at the outset. Ongoing relationships may or may not be preserved.
Collaborative Law: The collaborative process is a structured, voluntary process, and cannot be court ordered. The process is designed for early intervention, to be used instead of litigation (although the parties do not waive their right to go to court if they are unable to reach a settlement). All parties are represented by collaboratively trained lawyers, who serve as dedicated settlement counsel.
The parties, after being fully informed of the benefits and risks of the process, enter into a contract (Participation Agreement), which serves as a road map as the parties work through the steps in the process to resolve the dispute. The parties and their lawyers engage in face to face meetings. Relevant information and documents are voluntarily produced, and should experts be needed, the parties may jointly engage mutually agreed-upon experts.
Negotiations in the collaborative process are always interest-based, seeking to arrive at a settlement that meets as many of the goals, interests, and concerns of all parties as possible.
Mediating in the Collaborative Process: Mediators trained in the collaborative process and knowledgeable about interest based negotiations can work in the process in several ways as third party neutrals. The parties and the lawyers should be involved in the selection of a mediator, and the mediator’s role should be clearly defined at the outset.
At the beginning of the process, a mediator can serve as a facilitator or case manager. Having a facilitator at the outset is particularly helpful when there is a significant power imbalance among the parties. There may be cultural and language differences among the parties, and a suitable mediator can build bridges. A mediator can help control fees and time to resolution.
As the process progresses, a mediator can be helpful in managing specific issues, such as information disclosure. A mediator can keep all parties on track and following the steps in the process. Issues may arise regarding the need for retaining experts, and if it is determined that an expert would be helpful, a mediator can assist in selecting a mutually agreeable one.
When a party has unrealistic expectations and reality testing is needed, a mediator can more easily ask “Why?” questions than can a collaborative lawyer. A mediator can speak to all parties in confidence about their assessment of the situation and barriers to resolution.
If the parties are approaching impasse in their negotiations, experience has shown that having a skilled third party neutral in the room adds a new dimension, and the parties may very well quit the dithering, and focus on reaching a resolution.
Larry Maxwell is a collaborative lawyer, mediator and arbitrator. He can be reached at firstname.lastname@example.org.