Mediate Arbitrate
Mediate or ArbitrateThe Price of anything is the amount of life you pay for it. – Henry David Thoreau
Why Mediate or Arbitrate?: Participants in mediation or arbitration voluntarily submit to these processes. People who arbitrate or mediate realize that conflict has its costs. Costs include:
Financial Price
o Attorney Fees
o Lost Productivity
o Time Lost
Physical Price
o Stress-related Illness
o Accidents
o Lack of Sleep
Intellectual Price
o Adversarial Assumptions
o Mistakes
o Failures
Emotional Price
o Anger
o Distrust
o Fear
o Grief
o Pain
Social Price
o Broken Relationships
o Distracted from Meaningful, Desired Relationships
o Risk of Escalation
o Loss of Family
Spiritual/Heart Price
o Surrendering to Bad Character
o Imbalance
o Values Warped
o Loss of Joy, Love and Hope
Systemic Price
o Dysfunction
o False Polarization
o Lost Opportunities
You have better things to do. Through mediation and arbitration, you can control and reduce the costs of conflict. Parties to mediation and arbitration can control the time it takes to resolve a dispute.
Consider the alternative. Litigation can be forced on a person. If you are sued you have to respond or you will suffer an adverse judgment. Attorneys must be hired. Litigation is an adversarial process in which each party attempts to out maneuver and gain the upper hand. Conflict, with is costs, escalates. The court imposes its deadlines. The parties have little control of the costs, timeline or outcome. In the end, the Court imposes an outcome which might not meet the needs or desires of either party. In litigation the parties lose control. In mediation the parties retain control over the outcome.
When litigation is threatened or even after it has started, you can always suggest the alternatives of mediation or arbitration or a court appointed referee.
What is Mediation? Mediation is facilitated negotiation. Mediation seeks a mutually beneficial solution. Parties discuss their values and motivations. Solutions evolve as parties understand each other, gain knowledge and explore resources. A trained mediator facilitates the meetings. The mediator remains neutral and does not make decisions for the parties. The dispute is settled only if parties are in agreement.
Is Mediation Effective? Studies of mediation of domestic disputes show 95% of participants did not believe mediation would work before they began. Yet 71% reached agreement on some, if not all, the issues they faced. Doubt is normal and does not predict the outcome of mediation. Divorced couples who had a judge decide the outcome of their divorce are 7-8 times more likely to bring future disputes to the court than those who mediated.
Is Mediation for Everyone? If a person is afraid to be in the same room as the other party or does not feel able to speak up or disagree with them, mediation might not be appropriate. Such concerns should be shared with the party’s attorney and mediator before mediation sessions.
What Happens During Mediation? Generally the mediator opens the session with an introduction. Rules for the discussion are established. Issues are identified. The parties may be invited to state what they want and why. Discussions follow. The mediator summarizes agreements reached.
Types of Mediation: The extent to which the mediator directs the outcome of mediation varies from mediator to mediator. On one end of the continuum are mediators who refuse to interject their opinions into the process. On the other extreme a mediator might evaluate the evidence and arguments of the parties and recommend a specific outcome. In some mediation sessions the parties stay in constant contact with each other. In other mediations, the mediator uses a process called caucuses. A caucus is a meeting with the mediator and just one side to the dispute. The mediator may shuffle between separate rooms where the parties are and communicate information, listen, ask questions and discuss the arguments and evidence presented by the other side. The type of mediation used depends upon the mediator, the issues to be decided, and the desires of the parties.
What is Arbitration? Arbitration has been described as “rent a judge.” A neutral person is hired who reviews evidence and renders a decision. Under Iowa law, an arbitrator’s decision can become a decision of a court and is enforced is a similar fashion. Subpoenas are available to compel witnesses and evidence to be brought to the arbitrator for decision.
What are the Advantages of Arbitration? Some of the benefits of Arbitration include:
a) The parties can agree to control the costs and time necessary to resolve a dispute;
b) Arbitrators are legally trained to make judicial decisions based upon law and evidence. The risks of a biased or an emotionally driven decision is less when compared to juries.
c) An Arbitrator can also be asked to investigate and collect the evidence. The costs and time necessary for a dispute is greatly reduced. See the article on Investigative Binding Arbitration.
d) Arbitrators with special technical expertise can be hired to reduce the risk of error.
e) A case can be handled piecemeal. For example, in an auto accident case the arbitrator can first determine if the defendants are responsible to pay any damages. Only if a defendant is responsible will there be need to incur the cost of presenting additional evidence about damages.
f) The parties can agree to a less formal process and allow evidence to be presented by summaries, reports, or other convenient means.
What is a Court Appointed Referee or “Special Master”? A judge may assign certain tasks to a referee or special master. The issues assigned must be issues “not tried to a jury.” Basically a judge orders the special master/referee to do a task while specifying the time frame, who will pay, the expected final product, and any limitations on authority deemed appropriate. The referee’s decision can be approved by the judge or appealed to the assigning judge or court. The special master can convene hearings and compel witnesses similar to judges.
Why use a Court Appointed Referee or “Special Master”? Cases which require a lot of attention, special technical skill or record keeping are the type most readily referred to referees.
Referees can play an important role high conflict divorces. Since parties share parenting responsibilities even after the divorce, the potential for ongoing bitter disputes and new disputes is great. In high conflict divorces, the parties find it impossible to resolve minor disputes. The cost and delay of going to court results in escalation of conflict as the parties battle against each other for control and influence over the children. The children suffer in the midst of parental conflict. The court can give a referee authority to hear, investigate and decide such disputes. Decisions can be made in days rather than 7 to 12 months it normally takes in litigation.
In summary, to avoid investing an undue amount of your life in conflict, try mediation, arbitration and special masters.
