Before law school, I didn’t know that most cases settle before they go to trial – today, less than two percent of all civil cases filed in federal court are resolved by trial. I also didn’t know that mediation plays a key role in resolving many of these disputes before trial. As part of the Mediation Clinic at my law school, I became interested in this fast-growing area of law and the important role mediation plays in conflict resolution.
What is Mediation?
Mediation is a method of alternative dispute resolution (ADR) available to parties (the other main one is arbitration). In the Mediation Clinic, we mediate cases in small claims courts around Los Angeles County, which deal with a range of issues from landlord/tenant to consumer/merchant to contractual/business disputes. Mediation is an informal, confidential, and voluntary process. Unlike arbitrators and judges, mediators do not decide the case. Mediators do not represent either side and are not biased towards either party; rather, they are neutral third parties who facilitate discussion and help the parties mutually reach a resolution.
During mediation, the mediator facilitates the negotiation and resolution of the parties’ dispute. The mediator helps the parties find common ground and can offer creative solutions. The mediator plays an important role in defining the key issues, communicating information between the parties, and encouraging parties to better understand the other side’s position, ultimately helping the parties craft a settlement agreement that best meets the interests of both parties.
Mediating cases not only helps lighten the judge’s docket, but also allows parties to avoid the time, expense, unpredictability, and emotional tension of trial. It allows both parties to avoid the risk of a negative outcome (statistically, half of the litigants will lose their case!). It’s a less adversarial, win-win situation that allows more room for compromise. While the judge is limited in the types of remedies they can give, mediation allows for more than just monetary damages; the sky’s the limit when it comes to the solutions you can create! In crafting their own deal, parties are also more likely to abide by a settlement agreement than a judgment.
Mediation Skills
Mediation requires skills that are relevant to the legal practice:
- People skills. Parties often bring a lot of emotions into court, and a mediator must be able to show empathy and build rapport with both sides. The mediator must then identify the key issues, set the agenda, and sometimes uncover hidden interests in order to ultimately reach a settlement. This includes being able to read a room and think on your feet. During my first co-mediation, the parties initially seemed cordial with each other, but the defendant gradually became more frustrated with the plaintiff’s behavior and ended up storming out of the room. If we had read the room a little better, we would have caught the emotional cues suggesting that the defendant was starting to become agitated, and split up the parties before it was too late.
- Despite acting as a neutral party, the mediator has her own agenda of persuading two adversarial parties to come together. A key aspect of being a good mediator is the ability to look at a situation from different perspectives and help each party better understand the other’s perspective. This often requires creativity. For example, in looking for non-monetary solutions, as most parties come in demanding a monetary payment but may have other interests and concerns that are not revealed initially. One of my classmates in the Mediation Clinic conducted a mediation where a contractor did a poor job setting up and decorating a venue for a daughter’s quinceañera, and the frustrated mother and daughter were demanding a refund. After digging more into the situation, my classmate found that the contractor also felt terrible about underperforming on a day that was so significant for the daughter, and realized that money might not be what the mother and daughter most wanted. The mediation ended with an enforceable settlement agreement where the contractor would pay a small amount but prepare another party for the daughter, with the specific terms laid out. Persuasion requires active listening: listening to what the parties have to say before pushing on solutions, being present, and focusing on each party’s needs and interests, with the goal of helping the parties obtain what’s most important to them.
- Optimism and problem solving. Each case presents a new problem to solve. Optimism can go a long way in helping parties reach a resolution, especially when parties seem to be stuck at an impasse. I observed a couple of mediations where the case seemed mediatable, but the mediator gave up early. Not every case is mediatable, but my clinic professor had plenty of stories involving seemingly impossible cases where parties were so far apart that there seemed to be no hope of a compromise, but eventually came together and reached a resolution. That’s what mediators are for – good mediators will not give up and will chip away at a dispute until they can guide parties to a resolution.
Whether or not you choose a career path in mediation, the experiential skills gained through mediation are invaluable to the practice of law, whether you’re settling a case in litigation, negotiating a contract agreement, or developing a creative solution in an emotionally charged situation. Just like the practice of law, mediation requires patience, persistence, and the ability to work with different kinds of people.
If you’re interested in learning more about mediation, consider taking a class on ADR, finding out whether your law school has a mediation clinic, or looking into mediation training workshops or opportunities your city may offer to become a volunteer mediator!
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