MEDIATION BASICS

King County and Pierce County now require mediation prior to trial for most disputes.  What is this process, and why is it required?

Mediation is an opportunity for the parties in dispute to have a conversation either through, or with the assistance of, a neutral and trained mediator.  Mediation is frequently and surprisingly successful, given that the same parties were previously so unable to reach a resolution that court proceedings were instituted.

Mediation must be distinguished from arbitration and from litigation.  Arbitration is a very formal trial-like process where an architect, attorney or other trained professional actually hears evidence and renders a decision.  Arbitration is usually required  when a contract provision so provides, or where particular industries that utilize interstate commerce are at the core of the dispute.  Mandatory arbitration under statute and court rules apply to many cases, but not all.  This varies upon the amount in controversy, the relief sought, and whether other statutes specify that the case must be tried before a judge.  Witnesses testify, exhibits are offered into evidence, and the submissions of briefs to the arbitrator make the process very much like a trial.

Litigation is a formal court process before a judge or jury, with witnesses and documentary evidence to support each party’s case.  Litigation of most disputes is open to the public, and a recording or transcript of the proceedings is made.

Once in the mediation, each party is usually given its own space to meet as a team consisting of the party, that party’s  attorney, the expert (if any), and key witnesses.  The mediator will sometimes start the parties in a common room for introductions, before breaking out into private sessions.  Some mediators assess the situation as not appropriate for a common session (for example, in highly emotional cases involving sexual harassment, bitter custody disputes, allegations of fraud, etc.).  The private sessions are to assist each party with assessing settlement offers and demands, with the private expertise of legal counsel, expert, and key witnesses.

The benefits of mediation are that the parties are able to fashion contractual remedies and agreements for themselves that arbitrators, juries, and judges cannot impose.  It is a favorite quote for judges to say, “The court cannot fashion a remedy for the parties that they did not fashion for themselves.”  Mediation is an attempt to do exactly that…the parties themselves are in control of the outcome.  If you do not receive an acceptable offer, you leave the mediation and proceed with the arbitration or litigation process.  If you do receive an acceptable offer, a new agreement is drawn up between the parties to utilize going forward.

The selection of the mediator can be critical to whether the case settles.  A mediator with expertise in the particular area of the dispute can be extremely useful to open up the world of possible solutions to the thorny problems that brought the parties into dispute.  If your mediator actually worked as a realtor for twenty years, then served on the ethics panel, then served as a financing broker for the real estate division of a bank, this mediator would bring a unique skill set to your real estate dispute, but possibly very little substantive expertise to your employment dispute.  Even so, training in conflict resolution, building trust, drafting lasting agreements, and just maintaining a peaceful presence often does the trick.  Don’t write off the mediator for lack of specific technical expertise.

Mediators attempt to move the parties from blaming each other for what happened yesterday toward a focus of moving forward efficiently, cost-effectively and into a lasting resolution.  The success rate of mediation remains at over 90%.  It is therefore usually a good use of time and money.  The same cannot often be said for litigation, but obviously where another party refuses to recognize their own obligations, litigation and arbitration are sometimes required to preserve rights and enforce remedies.