Alternative Dispute Resolution – Mediation

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Scope of Practice

 

It is well known that fewer and fewer civil disputes are being resolved by full court proceedings culminating in trials, whether jury trials or trials to the judge alone (without juries).  Jury trials especially are quickly becoming a thing of the past.  There are many reasons for this trend, which can only be expected to accelerate in the future.  Here are some of them.

 

        • As legal fees and other court-related expenses continue to soar, court proceedings have become prohibitively expensive, and therefore unavailable as a practical means of dispute resolution to all but relatively wealthy litigants.
        • There is no way to predict when a fully-litigated court case might end.  A judgment concluding a case in the trial court might only result in an appeal, with further delays and expense.  A reversal in the appellate court might result in a remand to the trial court for a new trial, with the possibility of a new appeal, etc., ad infinitum.  There is no way to predict when the case will finally end, or how the ever-mounting costs and delays might be weighed against the value to the litigant of an ultimately favorable outcome. 
        • Court proceedings are conducted in open court and on the public record.  These days, the details of once-obscure court cases are available on the Internet with a few clicks of a computer mouse.  Most people and businesses dislike airing their disputes publicly and would prefer a more private means of sorting things out.
        • While judges and juries do strive to adjust disputes fairly and reasonably, they must do so with limited information and in the space of a few hours, or even a few days, but always with only a fraction of the information that the disputing parties have at hand; they having lived with the dispute for months or perhaps years.  This can and does occasionaly lead to miscarriages of justice, but frequently engenders in the litigants a sense that they are losing control over their fate; that they are just rolling the dice and hoping for the best.
        • Reaching a mutually-agreeable settlement of a civil dispute through a voluntary process of give-and-take can leave fewer hard feelings between the parties, who have often been associated in business, family or friendship relationships for many years, some of which through necessity must continue into the future.  Helping to deemphasize the “winners” and “losers” aspect of the dispute resolution process can promote healing and reconciliation.

 

The term “Alternative Dispute Resolution,” or “ADR” encompasses many different approaches.  Section 802.12 of the Wisconsin Statutes lists no few than ten:

 

    • Binding Arbitration
    • Direct Negotiation
    • Early Neutral Evaluation
    • Focus Group
    • Mediation
    • Mini-trial
    • Moderated Settlement Conference
    • Nonbinding Arbitration
    • Settlement Alternative
    • Summary Jury Trial

 

By far the most common of these is Mediation, a dispute resolution process in which a neutral 3rd person, who has no power to impose a decision if all of the parties do not agree to settle the case, helps the parties reach an agreement by focusing on the key issues in the case, exchanging information between the parties and exploring options for settlement.  §802.12(1), Wis. Stats.

 

Cost-containment, privacy, greater personal control and participation, quicker resolutions, and the possibility of a more peaceful outcome:  these are all reasons why ADR and especially Mediation will become increasing prevalent in resolving civil disputes.  Where Mediation is possible, it can be a better process.

 

Virtually any kind of civil dispute can be appropriate for ADR, including family law matters, business disputes, personal injury and property damage claims, and real estate boundary contests.  While it might at first appear that a certain dispute could never be resolved in this way, lawyers, judges and meditators familiar with ADR can almost always cite examples of cases that at first looked impossible to resolve using these techniques, but eventually settled completely and to the mutual satisfaction of the disputing parties.

 

My ADR practice affords litigants the opportunity resolve civil disputes using these proven methods.