Mediating For the Masses

Please allow me to be very frank with you dear reader. The purpose of this article is to convince you that mediation, as oppose to litigation, is the Appropriate Dispute Resolution technique in the majority of civil disputes. First of all, what is mediation? Mediation is a method of alternative dispute resolution or ADR in which a neutral third-party is asked to facilitate the negotiation process in order to bring both parties to an amicable resolution. A mediator acts as non-biased neutral, whose role is to increase the level of communication and expand the possibilities for an agreement between the disputants. Simply put, a mediator does not act as a judge and does not give his or her decision on who is right or wrong; on the contrary, a mediator allows the parties to decide what resolution works for both of them. By now, some of you may be asking why you would need to utilize the services of a third-party to achieve the same result you can do simply by talking with the opposition. Good question.

Picture this: You have just been involved in a moderate auto accident in which the other car ran a stop sign on a two way intersection where you had the right of the way. Your car is wrecked, your neck is stiff, and your adrenaline is through the roof. Whoever hit you is in a similar shape, but luckily you are both alive and can deal with the aftermath. You exchange insurance information, get your cars towed, receive police reports and get a check up in the hospital. A day or so after you make a claim to this person’s insurance company and in the process find out that he or she had convinced the insurance company that it was your fault. Now imagine dealing with this person face to face in order to come up with an amicable resolution while in your mind recalling your every feeling during and after the incident. Would you be able to hold your self back from shouting and slamming the table? In most auto accident mediations I have served in, when the disputants are placed in the same room and asked to “talk it out”, someone always looses their temper. However, as a mediator I have the power to separate them from each other and convey the message in a non-adversarial way in order to reach a settlement.

Insurance companies very often use mediation as means to settle a case before litigation. In many states mandatory mediation, ordered by a judge, is a very common practice and proves to be extremely effective. However, it is rarely the go to method of settlement for most attorneys or individuals. The fact is that you do not need to utilize the services of an attorney in order to request mediation with your insurance company or anyone else for that matter. [Please keep in mind that a mediator is not allowed to practice law during mediation and will not give you legal advice in the proceeding.]

What about other disputes, more commons ones, such as neighbor, family, credit card company, furniture store, your dry cleaners or the coffee shop on the corner? What happens if you cannot resole a dispute with the stubborn manager or a clerk? Can mediation help you there? The answer, as you might have guessed by now, is yes, but there is a but. Sometimes hiring a professional mediator can be too expensive to solve a simple problem. The cost for mediation might exceed the amount in the dispute or the value of the dispute resolution it self. But do not despair, you can always ask a friend.
Recently I was accompanying a friend of mine on a short trip to pick up his vehicle from a service appointment at a dealership. There we ran in to a problem. It appears that his vehicle not only was not ready at the time of the pick-up, but the part that was supposed to be exchanged in the vehicle was not even ordered. To make matters worse the vehicle was a limousine and already was scheduled to make a pick up that evening. Needless to say my friend was very, very upset.

The management of the dealership, the name of which in my good nature I will leave out, was not very forthcoming with a solution. All they were doing is making a whole bunch of excuses that did not make much sense. After about thirty minutes of arguing and screaming my friend simply said that he cannot deal with them and asked me to step in. After separating both parties I was able to discover that the repair department screwed up big time. The part was at a storage facility miles away and the delivery truck had already left. Immediately I asked them a question of how long the installation of the part would take if they had it on hand. They informed me that it would not exceed ½ hour and that they were also willing to install the part for free. Thereafter I explained the situation to my friend; he and I put our heads together and decided to call one of his drivers in the vicinity of the parts storage in order to pick up the part and deliver it to the dealership. A resolution was reached and the limo was in service on time.

Do not be afraid to call on a friend to serve as a mediator in time of need. When we are faced with an unforeseen problem our rage and disappointment many times will cause us to temporarily lose our problem solving skills. By simply finding someone who is not directly involved in the dispute and is able to separate him/her self from being adversarial you can find a mediator in any of us. This brings me to another and perhaps most important advantage of mediation – relationships.

Very rarely will you hear of anyone remaining friends after litigation (a lawsuit). For the most part after people spend thousands if not hundred of thousands of dollars, months of preparation and efforts, and an enormous amount of worrying, after litigation the failing party does not want anything to do with the prevailing. Mediation saves relationships. Friends stay friends, businesses retain partnerships, families remain close and debtors feel relieve. When litigation takes place the parties, for the most part, can focus only on tangible problems, mostly money. Mediation can allow you to talk about the underlying issues that caused the dispute in the first place. Much like the Western medicine cures the disease, Eastern medicine focuses on what caused the disease to appear.

True story: A young girl of no more than ten years old got hit by a semi-truck while crossing the road and was instantly killed. The family sued the corporation which owned the truck and employed the driver. The case was going on for years; the insurance company for the corporation stepped in and tried to come up with a monitory amount that would ease the parent’s sorrow, but was unable to do so. A judge was asked to weight in on the case before the litigation to try and resolve this case before the suit. The family was offered close to $20 million dollars, but they would not accept the settlement. Finally the two sided decided to mediate the case. The mediator spent vast amount of time talking to the parents to try and see what was preventing a resolution. Was it the amount of money offered or was there something else? After about six hours of what probably was the mediator’s most emotional case the parents revealed their feelings. The bottom line was that their daughter was gone, very prematurely. Her life was cut short and her existence would not be known by anyone except the family and those close to them. Armed with this information the mediator went to the insurance company explained the situation. After much deliberation someone offered to place a permanent plaque at the intersection where the accident happened, thus commemorating the daughter’s existence. A settlement was reached.

In this situation the money was worthless to the family, but the memory of their daughter was not. A mutual resolution was reached for half of the amount initially offered to the family, but twice the sentimental value they would have ever gotten from litigation.

Recently the word mediation appeared more often in the news, movies, radio and business journals, but in majority of those appearances the situation in which the mediation process was utilized was on a much greater scale than any personal situation anyone of us can have. Mediation is for the masses. We all can use mediation to settle our disputes and retain relationships. Mediators do it until everyone is satisfied and I promise you that one day ADR will stand for Appropriate Dispute Resolution, but it must start with you.