Mediation

I chose to write my paper on mediation. To borrow a quote from Dr. Bernstein, "There is only one good kind of legal dispute - The one that is prevented." I find it interesting how successfully a resolution can be reached through mediation. This paper explores key information relating to dispute mediation.

When writing a paper about mediation, it would only be logical to begin with the question, what is mediation? According to The Real Life Dictionary of Law, mediation is "the attempt to settle a legal dispute through active participation of a third party (mediator) who works to find points of agreement and make those in conflict agree on a fair result."

Mediation serves as a method of alternative dispute resolution (ADR). These alternatives are the options one has other than litigation. In "The Satisfactions of Litigation," Parselle argues litigation partly drives mediation, and is also partly the competition. He claims some people prefer litigation because it is "adversarial." The dispute becomes a competition where there will be a winner and a loser.

Alternatively, mediation is a successful method of resolution because the legal system can be costly, painful, destructive, and inefficient. Instead of the strict win/lose scenario with litigation, mediation allows parties to reach a result that is acceptable to all involved.

Mediation can be seen as an accessory to, not a substitute for the litigation process. In Federal courts, only 2% of filed cases end in trial. Comparatively, in California state courts, less than 4% of cases end in trial. Mediation is not entirely responsible for these small numbers, but it certainly has played a large role.

Mediation is most typically used to resolve child custody and divorce cases. It is also a successful method for settling small claims. Mediation has even been used as an aid to settle the most unusual disputes, including school truancy cases, cases of incest, and even recently to settle the break-up of same sex "marriages."

Mandatory mediation is becoming a reality, as pointed out by an article in the Cleveland State Law Review. California took the lead in implementing a mandatory mediation statute covering all custody issues stemming out of a divorce. Delaware also has a mandatory mediation statute for all issues relating to custody, support, or visitation.

Some communities are taking issue with the principle of mandatory mediation. An editorial in The New Jersey Lawyer refers to a community who is losing mediators due to three free hours of mandatory mediation time. The editorial suggests the mediation should be mandatory. The article argues that some clients prefer the litigation process, and others have extenuating circumstances to which the mediation alternative is inappropriate.

The article "Five Mediation Rules to Remember" suggests the following ideas to keep in mind throughout the mediation process:

* Get involved with picking the mediator

* One side needs to walk away disappointed

* Be polite, be professional, and be calm

* Settle on a principled basis

* It's OK to say