While I have written previously about the use of “Med-Arb”, the concept of binding mediation was foreign to me until recently. I read an article written by Peter Gene Merrill entitled “Binding Mediation: The Time Has Come for This ADR Process.” The process is quite simple as described by Mr. Merrill:
“Binding mediation commences with a standard mediation process. Should the parties reach impasse any issue(s) through the standard mediation process, the mediator will be called upon to make a final and binding decision that will settle the unresolved issues.”
Binding mediation is a concept that should be attractive to both insurance companies and plaintiffs’ lawyers alike. This process seems perfectly suited for the smaller damage personal injury cases to save the costs and expenses with either arbitration or a court proceeding. I can also envision this process working well in smaller, less complicated workers’ compensation claims.
This process may not be appropriate in every situation but it is absolutely something to consider. Binding mediation is a tool that I am adding to my list of services. If you have any questions, please let me know.
Mediation is a process which starts at the initial contact with the parties or their lawyers. In that initial contact I want to find out how interested the parties actually are to resolving the case. I also want to start dealing with expectations and the possibility of impasse and how to deal with it. The mediation process runs smoother if the parties have exchanged necessary information, documents, etc. sufficiently in advance of the mediation. Nothing puts an end to constructive progress faster than a piece of important evidence surfacing during the mediation. In my view the parties should be encouraged to share at least part of their mediation submission with the other side in advance of the mediation. If there are matters that for trial strategy reasons need to remain confidential prepare a separate submission to just the mediator addressing those issues. The mediation process works best when all necessary information has been exchanged.
The parties to every mediation have interests that they are trying to satisfy. Whether those interests are substantive or procedural or more of a psychological nature (an apology, acknowledgement of wrong doing, respect etc.) there is always an underlying reason why they want what they want. Ascertaining those interests is the job of the mediator and many times can be uncovered by simply asking the party to explain why their position is important to them.
In contract to an interest, a position is probably best described as being the demand being made on the other party – what they want out of this claim. In the common case of a injury action that is almost always money, “I want $100,000 to settle my claim”. An interest though is deeper than that. An interest is the need or motivation justifying the position – the reason the party wants something. So, in the example of the personal injury action the injured party wants money (position) and the reason they want the money (interest) is to cover medical bills, catch up on their mortgage payments, pay college tuition, start a business etc. When parties negotiate only based on positions settlement can become very difficult and impasse often results. When the interests of the parties are considered negotiating a mutually acceptable result is far easier and results in a more satisfactory agreement.
After over 400 mediations I had finally stumbled upon why so many of those mediations often turned on issues that had nothing directly to do with the dispute – things that were important to the participants and were crucial to getting the case resolved but many times had little or nothing to do with the claim at hand. I had made that very comment in my initial orientation session with the parties more times that I can count, often with amazement: “why many times what is important to the parties has nothing to do with the claim we are mediating…”. And then it finally hit me: what I was experiencing and describing was the fundamental difference between positions and interests.
I have never claimed to be the brightest bulb on the tree and most mediators probably had this “Aha” moment far sooner than 400 plus mediations. Even though I wasn’t able to pigeon hole what I realized into the category of positions versus interests I am relieved that I at least recognized there was more going on behind the scenes of the cases I mediated.
Twenty plus years ago when I was first exposed to mediation as a means to resolve disputes the practice was limited almost exclusively to resolving disputes within the judicial system. Pending lawsuits or threatened lawsuits seemed to be the only use we could imagine at the time for mediation. Resolving disputes that are within the judicial system is still firmly entrenched in the practice of most mediators but the efficacy of mediation has caused society to expand it’s collective imagination far beyond that limited boundary. Presently, it seems the use of mediation as a means to resolve disputes is nearly limitless. Disputes outside the court system are increasingly (and successfully) handled through the mediation process.
Possibly the best example of this involves issues commonly faced by families involving the elderly: estate planning and distribution, financial independence, guardianships, long term care and other related issues. These issues are now regularly being resolved through mediation rather than costly and protracted family fights. Mediation in this setting provides a safe place for family members to find solutions that all can live with and allows for the exercise of the very hallmarks of mediation: self-determination and confidentiality. Pilot programs currently exist in several states that are dealing with this very issue:
While South Dakota is not one of the pilot states at this time mediation can still be used to deal with these difficult issues between family members.
For similar reasons, mediation is also being used on a regular basis to handle issues pertaining to special education disputes between parents, teachers and administrators; to handle disputes between neighbors; issues that are presented to homeowner’s associations, Better Business Bureaus, Chambers of Commerce; workplace disputes between employers and employees; and a multitude of disputes involving organizations of all types. It is an exciting time to be a mediator as the possibilities for mediation are unlimited.
Corey Denevan and I would be happy to discuss with any of you any of the issues addressed in this blog. Please do not hesitate to contact us for your mediation needs.
I spent over thirty years litigating claims and it simply wore me out – physically and mentally. It was my job over that time to fight and try to win for my clients. In the course of that time in an adversarial system I witnessed first hand how an adversarial system negatively impacts all involved in the process: clients, lawyers, judges and juries. The system is particularly hard on the clients and witnesses – it is no fun to have nosy lawyers or insurance companies picking through your life, often times the most personal of details, and only then after enduring that ordeal to have to bare your soul to a judge or jury. Money is spent prosecuting and defending the case over a lengthy time with the result ultimately being one that makes no one happy because of the costs and most importantly because the end result is out of the parties’ control. In most litigated and tried cases, no one wins.
Whether it is mediation or arbitration or some combination or variant thereof, alternative dispute resolution works. In my opinion and experience the success of ADR is well established – anecdotally and otherwise. It saves money and time and wear and tear on all involved. And ADR leads to results that the parties can live with.
ADR can happen quickly and is relatively inexpensive. Most mediations that I do cost about $2000 in mediation fees which is typically split between the parties. With mediation, the end result is one the parties design and control. It is not a decision made by anyone other than the parties. While arbitration involves a decision made by an arbitrator, the end result is designed to occur quicker and with less expense and hassle than a full-blown trial.
I want to see you avoid what I described in the first paragraph above. I want to see you save money and time and wear and tear and craft a result that you can live with. This is why I believe in what I am trying to do by establishing a full-time practice as a mediator or arbitrator.