Mediation


What is "Mediation"?

Mediation is a dispute resolution process in which the parties to the dispute agree to work with a neutral third party, the mediator, toward a voluntary resolution of the dispute.

Mediation is frequently confused with arbitration. In arbitration usually the neutral, the arbitrator, decides the dispute. In mediation the neutral, the mediator, does NOT decide the dispute for the parties.

Mediation is one form of Alternative Dispute Resolution (ADR). When judges and lawyers talk about Alternative Dispute Resolution they are referring to alternatives to resolving a dispute through the civil justice system. Resolving a dispute through the civil justice system means going to court and having a judge, and possibly a jury, decide disputed issues.

There are several types of ADR. The various forms of ADR recognized by the Minnesota state courts are discussed in Rule 114 of the General Rules of Practice for the District Courts. These Rules are available online at http://www.courts.state.mn.us/?page=826.

The Minnesota state courts divide ADR into these categories: Adjudicative Processes, Evaluative Processes, an Investigation and Report Process, Facilitative Processes and Hybrid Processes. Mediation is categorized as a Facilitative Process.

Generally, with Adjudicative ADR, the parties agree to take the dispute OUT of the civil justice system and resolve it through a different process [Rule 114 refers to a “Summary Jury Trial” as one form of an Adjudicative Process but also states that the jury panel may issue a “non-binding advisory opinion”; if the decision reached is non-binding then the process is really evaluative rather than adjudicative. Additionally, Rule 114 includes use of a “Consensual Special Magistrate” (“rent-a-judge”) in place of a civil court judge and/or jury but provides that the process, though “binding,” includes the right of appeal to the Minnesota Court of Appeals]. With the various other forms of ADR the parties KEEP the dispute IN the civil justice system but try to resolve it through an ADR process; if the dispute doesn’t get resolved through ADR the parties continue the process of resolving it through the civil justice system.

The Code of Ethics applicable to mediators and others involved in ADR in Minnesota is an Appendix to Rule 114 of the General Rules of Practice for the District Courts. This Code is also available at http://www.courts.state.mn.us/?page=826.

Why Should Parties Choose Mediation Over the Civil Justice System?

To really appreciate the choice between mediation and the civil justice system you need to know what typically happens to a case going through the civil justice system. People who haven’t taken a case through the system, and to a final resolution, might not appreciate why mediation is a better route.

Most people have heard that in the civil justice system, the parties are entitled to a “trial by jury.” That is generally true. But disputed issues are categorized as either “legal issues” or “factual issues.” If the disputed issue is a “legal issue,” a judge decides it. Only “factual issues” may be decided by a jury. And if there’s a dispute over whether an issue is “legal” or “factual,” a judge decides that dispute.

If either side requests a “jury trial,” there will be a jury trial to decide any disputed “factual issues.” That’s true even if the other side doesn’t want a jury trial. But if both sides waive the right to a “trial by jury,” then a judge decides all disputed issues, whether they are “factual” or “legal.”

In the civil justice system, the lawyers for the parties have some control over the presentation of evidence and of arguments, as long as they abide by the Rules of Evidence and the Rules of Civil Procedure. But the lawyers, and the parties they represent, have no control over the judge or the jury. With legal issues, the judge hears each side’s position and then decides the issue. During the course of a trial there may be dozens of times when one side objects to some part of the evidence being offered by the other side. Typically a judge decides these objections without argument, and quickly, either sustaining or overruling each objection.

In the civil justice system, usually all factual issues to be decided by a jury are included on one special verdict form. After all of the evidence has been presented, after the lawyers have argued their clients' respective positions on disputed issues, and after the judge has instructed the jury on the various laws that the jury must follow in deciding disputed issues, the jurors are given the special verdict form and sent into a private room to deliberate. They decide all disputed factual issues by answering the questions on the special verdict form.

After the jury answers all the questions on the special verdict form they give the form to the judge and the jurors are then excused. The judge or a court administrator calls the lawyers and tells them what the jury decided. A party that doesn’t like the result may make a motion, asking the judge to overrule the jury. Occasionally, but very rarely, a judge will overrule the jury’s finding on one or more issues. The judge typically awards the side deemed as “prevailing” some expenses (but in most cases, not attorney fees) incurred in pursuing or defending the case. The judge then orders that a judgment be entered and docketed, in favor of one party and against the other, based upon the jury’s verdict and the judge’s award of expenses to the “prevailing party.”

Either party may appeal the case to the Minnesota Court of Appeals. Most appeals involve “legal issues,” with the appealing party arguing that the trial judge decided those legal issues incorrectly, and if those issues had been decided correctly the jury’s verdict would have been different. In the majority of appealed cases, the Court of Appeals affirms what the trial court judge decided. Sometimes the appellate court rules that even though the trial court judge decided a legal issue incorrectly, the result from the jury would still be the same. On very rare occasions the Court of Appeals reverses the trial court judgment and directs that judgment be entered for the side that “lost” the trial. In most of those cases where the Court of Appeals reverses the trial court (a significant minority of the cases that are appealed) the case is “remanded” back to the trial court for a new trial, sometimes on only some of the issues but more frequently on all of them.

Now that we’ve described what happens in the civil justice system, let’s re-ask the question we started with:

WHY SHOULD PARTIES CHOOSE MEDIATION OVER THE CIVIL JUSTICE SYSTEM?

With mediation, you can control the result that you get:

At mediation we talk about what resolution to the dispute would make sense. We look for something that both sides can live with. If it’s helpful we break the dispute into parts and try to resolve as many of those parts as we can. A party can say something like: “I’m interested in doing this if the other side will do that.” A party can know what they are agreeing to, and why, before they agree to it.

The “alternative” to mediation is a great unknown. There may be a “legal” issue in dispute. Such issues are decided by a judge. If a legal issue is in dispute it means that the lawyers cannot agree on how the issue should be decided; if the lawyers cannot agree on how the issue should be decided then they also do not know how the judge will decide it.

“Factual” issues are submitted to a jury if either side requests it. The parties do not know who will be on the jury until the first day of trial and even then the parties do not really get to know the jurors. The parties do not know how a jury will decide the issues until the end of trial when a verdict is returned, and then the parties do not know why the jurors decided the issues as they did. More significantly, every lawyer who has tried more than a few cases knows of times where juries have “surprised” parties by doing something that no one expected.

Mediation is cheaper:

With a case going through the civil justice system there is a tremendous tendency to fight over everything. The tendency comes from the fact that most of the disputed issues all get decided at once, during a trial. Each party says: “I’m not giving in on an issue because I don’t know which issues I’ll win and which ones I’ll lose; and since the other side is making me fight over all their issues, I’m going to make them fight over all of mine.” In contrast, with mediation compromise on minor issues is possible, even likely. Each party has the opportunity to say: “If I were to concede this issue, what would I get in return?”

Similarly, with mediation we can break down the major issues into subparts and work to resolve them. As a result, the parties spend significantly less time and money fighting with each other. And it’s important to keep in mind that in addition to saving on the cost of attorneys’ time, with mediation the parties themselves need not spend as much of their time resolving the dispute.

Mediation is quicker:

For the same reasons that it’s cheaper: the ability to compromise on minor issues; and the ability to break down major issues in order to resolve them. Additionally, negotiation is usually much, much quicker through mediation. Outside mediation, with civil lawsuits there’s a tendency after hearing a proposal to mull it over for at least hours, if not days or weeks, before responding to it; you fear that if you respond too quickly the other side might think you’re anxious to settle and then they won’t offer as much because they think that if they wait you’ll “cave in” because of your anxiety. Some of that “we can’t appear too anxious to settle” stuff also occurs with mediation, but with mediation each side is expected to respond more quickly to proposals from the opposition.

Mediation is less stressful:

Presenting a case at trial in the civil justice system is a bit like putting on a play in a theatre. Everything has to be scripted, rehearsed and ready for a performance. But unlike a play in the theatre, with the civil justice system there is another “company” fighting with the “company” putting on the play, trying to change the sets and the script. And neither “company” wants to risk boring the audience, so the performance must keep moving in spite of ongoing tension over the scenery and the script. In contrast, with mediation the two competing “theatre companies” are trying to hammer out the disputes over the scenery and the script and neither side is worried about an “audience” waiting impatiently to see the play.