Even the simplest business disputes cost tens of thousands of dollars to litigate and easily can shoot into the six-figures. Worse, cases can take years to get to trial. Even then, end results with judges and juries are highly uncertain. Luckily, mediation has stepped into the breach and offers a speedy, voluntary and confidential way to settle cases in as little as a day.
In a mediation, the parties and their attorneys meet privately and informally with a mutually agreed upon neutral mediator who helps the parties craft their own settlement. The parties equally split the mediator’s fee.
Mediation Kansas City is not arbitration. An arbitrator renders a decision based upon sworn testimony and exhibits that is binding upon the parties, without a right of appeal.
“Traditional litigation is a mistake that must be corrected… For some disputes trials will be the only means, but for many claims trials by adversarial contest must in time go the way of the ancient trial by battle and blood. Our system is too costly, too painful, too destructive, too inefficient for really civilized people.” Chief Justice Warren E. Burger, (Ret.) U.S. Supreme Court.
A mediator makes no decisions. He or she is a facilitator. A mediator discusses the dispute with the parties in a relaxed atmosphere and helps them identify the real issues in a case and options for settlement. In the few cases that are not resolved, the parties simply part and resume formal litigation in court. Nothing is binding.
Mediations are confidential. Nothing said or done in a mediation meeting is admissible in court. This gives the parties the ability to “put all their cards on the table” to get to the bottom of a matter without fear of giving up a point in court if the mediation is not successful.
Mediation meetings are generally held in one of the parties’ attorney’s offices. The only persons present are the mediator, the parties, and the parties’ attorneys.
The person attending for each party must have the authority to settle the case. If insurance is involved, an insurance company representative likely will participate.
No witnesses are sworn. Formal exhibits are not used. The attorneys do not examine the witnesses as would be the case in an arbitration or court hearing. No formal record is prepared.
The attorneys usually provide opening statements informally explaining the facts and issues from their clients’ perspectives.
The mediator then asks the parties and attorneys questions to confirm his or her understanding of the case and narrow the case down to the most important issues. Each party gets to explain his or her side of the case to the mediator.
The mediator guides the discussion to keep the parties on point and avoid arguments, outbursts, posturing, and brinkmanship.
The mediator separately “caucuses” with the parties privately and confidentially to isolate the issues that really are in dispute, find common ground and discuss realistic options for settlement. The mediator usually goes back and forth between the parties several times to resolve factual issues and “test the water” with realistic settlement alternatives.
Over the course of the mediation, the parties get a more realistic sense of the strengths and weaknesses of each other’s cases.
Frequently, the only communications between the parties before mediation have been formal letters and litigation filings. The parties have been “holding their cards close to the chest.” Because everything said in mediation is confidential, misunderstandings as to very basic facts can become apparent in this process, paving the way to settlement.
The mediator generally does not propose terms of a settlement. Instead, the mediator helps the parties fashion their own settlement over the course of the day.
If the parties reach an agreement, the basic terms are written up and signed by the parties at the mediation. Frequently, a more formal agreement is then prepared by the parties’ attorneys setting forth those terms. If money is to be paid as part of the settlement, it frequently is paid within a matter of days.
The bottom line is that mediation works! It works because it brings all necessary parties to the bargaining table where they can “realistically” evaluate their positions and safely explore settlement options. It works in settling over 85% of the cases in which it is utilized, including those where the parties have been unable or unwilling to negotiate, or have taken unrealistic or intransigent positions.
Today, parties litigate because they know of no better alternative. However, as the benefits of mediation become more widely recognized, it will undoubtedly become the most utilized tool for resolving civil disputes in the future.
Dan Cofran, a Best Lawyer in America, has practiced law in Kansas City for 40 years in corporate and commercial litigation, commercial real estate transactions and land use law. He is active in Kansas City civic affairs, including serving eight years on the Kansas City, Missouri City Council, as a board member of numerous civic organizations and a recipient of many civic honors.