The Gazette 1994

GAZETTE

AUGUST/SEPTEMBER

1994

Med i a t i on - Cou ld it ma ke your prac t i ce mo re prof i table?

By Brian MacMahon*

Mediation by contrast is a voluntary, non-binding, without prejudice, confidential process. Unlike an arbitrator (or judge) the mediator has no authority to impose a binding decision, though he or she may suggest ways of resolving the dispute. The mediator's role is to bring the parties together, to facilitate analysis of the dispute and to foster an atmosphere that allows the parties themselves to reach a settlement. Mediation allows the parties to retain control of, and participate more actively in, the outcome/settlement. The mediation process restores communication and builds trust. It breaks impasses by dispelling unverified assumptions and unrealistic expectations. The mediator who is a facilitator, not a decision maker, helps to eliminate problems of ego and personality. Mediated solutions tend to be "win-win" and not "win-lose". Mediation is private, quick, cost effective, flexible and informal. It helps to preserve the relationship between the parties, where relevant. Most importantly, mediation works. National statistics of United States Arbitration and Mediation We already know that the vast majority of all cases commenced in the court system settle before hearing. Settlement is often clearly in the best interest of all concerned. Mediation fosters early, cost-effective settlement by introducing a new element into the traditional negotiation procedure, the mediator. The mediator is an advocate for settlement and is not an advocate for either side. ADR techniques are used to condense the evidence and to foster constructive negotiations, assisted by the mediator. 379 Inc. indicate a settlement rate of 80% - 85% of cases using mediation. How Mediation works

The search today for better ways to meet our clients' needs requires that we explore new avenues for resolving their disputes. While litigation, negotiation and arbitration are the primary tools of dispute resolution, they are by no means the only ones. Backlogs in our courts may result in litigants having to wait for years for an outcome, at which point the financial and human cost of litigating may have exceeded the value of the dispute, the relief sought may no longer be needed, or it may have lost a great deal of its worth. In other jurisdictions, public recognition is growing that litigation is not a panacea for all disputes. The result is an increasing use of Alternative Dispute Resolution (ADR) methods - most commonly mediation or arbitration, to resolve disputes. The ADR movement has evolved with the aims of addressing the cost, delays, adverse publicity and damage to relationships of litigation, of simplifying law suits, and of substituting creative, negotiated agreements for imposed judgments. The use of alternative methods has already received support from the highest level of our judiciary.Speaking at a Seminar on ADR for the Construction Industry Judge Hugh O'Flaherty said: "It is no part of the court's function to adopt any sort of elitist disposition in relation to other dispute resolving bodies. On the contrary, as judges we recognise that the duty of such bodies, be they arbitrators, administrative tribunals or (providers of alternative dispute resolution services) . . . is the same as ours: to seek to do justice between the parties". Some support has also come from our legislature in the Judicial Separation and Family Law Reform Act 1989, sections 5 and 6.

Brian MacMahon

Why Consider ADR?

When our clients approach us with a problem, seeking our advice on how to get relief, our training and experience in litigation tend to condition us to suggest litigation early on, as the remedy of first resort. In litigation our clients relinquish control of the outcome of their dispute by transferring decision-making authority to a judge or arbitrator. To date disputants have had no forum in which they themselves , helped and advised by their lawyers, could devise their own solution to their dispute, knowing fully the true interests underlying their case.

Arbitration and Mediation Distinguished

Arbitration is a familiar, usually binding process which in many respects simulates a court hearing. Arbitration may be more speedy, private, flexible, less expensive and less formal than litigation. The cost of the arbitrator's time and of the arbitration venue are, however, usually a cost to the parties and not, as in litigation, to the State.