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From January 2007
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Mediation vs. Lawsuit
In a lawsuit-happy state, using a mediator can be a key to saving time, money and personal or business relationships.
Mediation is a confidential and voluntary conflict resolution process that uses an impartial third person to help people involved in a dispute work out a solution. Mediators assist the parties in a conflict to examine their mutual problems, identify and consider options and review resolutions. Agreements, depending on the nature of the issues, can usually be reached in a day. Divorce mediation generally takes longer, sometimes several months.
According to the Judicial Council, administrative arm of the California courts system, there were more than 1.4 million civil claims filed and nearly 1.3 million civil dispositions rendered in California in the fiscal year 2004-2005. Claims asking for large monetary sums, or with the intent to prevent immediate harm or set legal precedent, usually warrant litigation. Otherwise, mediation is the way to go.
Since the mediator does not have any coercive power, the strength of the outcome is totally dependent on the willingness of the parties to honor their mutually agreed upon solution. If no agreement is reached, parties using the mediation process can still opt for litigation; however, as defined by the courts, any discussions with the mediator and the disputing parties cannot be used for other purposes.
When to Mediate
Disputes among homeowners and contractors, consumers and merchants, landlord and tenants, employer and employees, as well as feuding neighbors, spouses and business partners are perfect times to mediate. Sacramento-based Kenneth Malovos, a mediator, arbitrator and trial lawyer, often mediates commercial and business disputes. “In the construction industry, contractors and their subcontractors need to file claims when conflicts arise, so they can protect their rights under the law,” he explains.
“Smart attorneys know that even if they need to file a lawsuit, it’s often in everyone’s best interest to resolve issues using mediation before the trial starts. Reaching an agreement this way can save the stress of waiting months for a court date as well as the potential added costs of a lengthy trial. In addition, the goodwill between clients can be salvaged, an opportunity often destroyed by the adversarial nature of litigation.”
Despite the growing trend to use mediation services, Malovos says many people still think they must use the courts to settle disputes. The cost of mediation depends on the kind of mediator expertise required. Mediators can be found by responding to ads in law-niche magazines and throughly browsing the websites of such services as Judicial Arbitration Mediation Services (JAMS) and the American Arbitration Association. Community mediation centers also can be good sources for free or low-cost services.
A Classic Case
It’s a good bet the 2007 Farm Bill, when passed by Congress, will trigger conflict. Carolyn Penny, co-director of UC Davis’ Common Ground, the Center for Cooperative Solutions, notes the language of new programs and regulations is a ripe area for miscommunications and misunderstandings, especially between farmers and the government. “We often see an increase in requests for mediation services during these rollouts,” she says.
Common Ground administers the USDA-certified California Certified Agricultural Mediation Program (CCAMP). Potential clients seek resolution of issues that include farm-program compliance, rural loans, crop insurance, pesticide management and grazing on federal land.
“For example,” Penny explains, “an apple grower denied crop disaster relief after a windy harvest can request mediation of the USDA Farm Service Agency decision. Most of the CCAMP mediations we handle concern issues of crop programs (Farm Service Agency) or rural single-family or multi-family housing (Rural Housing Service).”
While CCAMP’s mediation services are free, some costs may be incurred if outside experts are needed to resolve the dispute. Penny says that a “very high percentage” of the organization’s mediation requests result in agreements reached in 30 to 45 days.
Words to the Wise
By Patricia KutzaIn a lawsuit-happy state, using a mediator can be a key to saving time, money and personal or business relationships.
Mediation is a confidential and voluntary conflict resolution process that uses an impartial third person to help people involved in a dispute work out a solution. Mediators assist the parties in a conflict to examine their mutual problems, identify and consider options and review resolutions. Agreements, depending on the nature of the issues, can usually be reached in a day. Divorce mediation generally takes longer, sometimes several months.
According to the Judicial Council, administrative arm of the California courts system, there were more than 1.4 million civil claims filed and nearly 1.3 million civil dispositions rendered in California in the fiscal year 2004-2005. Claims asking for large monetary sums, or with the intent to prevent immediate harm or set legal precedent, usually warrant litigation. Otherwise, mediation is the way to go.
Since the mediator does not have any coercive power, the strength of the outcome is totally dependent on the willingness of the parties to honor their mutually agreed upon solution. If no agreement is reached, parties using the mediation process can still opt for litigation; however, as defined by the courts, any discussions with the mediator and the disputing parties cannot be used for other purposes.
When to Mediate
Disputes among homeowners and contractors, consumers and merchants, landlord and tenants, employer and employees, as well as feuding neighbors, spouses and business partners are perfect times to mediate. Sacramento-based Kenneth Malovos, a mediator, arbitrator and trial lawyer, often mediates commercial and business disputes. “In the construction industry, contractors and their subcontractors need to file claims when conflicts arise, so they can protect their rights under the law,” he explains.
“Smart attorneys know that even if they need to file a lawsuit, it’s often in everyone’s best interest to resolve issues using mediation before the trial starts. Reaching an agreement this way can save the stress of waiting months for a court date as well as the potential added costs of a lengthy trial. In addition, the goodwill between clients can be salvaged, an opportunity often destroyed by the adversarial nature of litigation.”
Despite the growing trend to use mediation services, Malovos says many people still think they must use the courts to settle disputes. The cost of mediation depends on the kind of mediator expertise required. Mediators can be found by responding to ads in law-niche magazines and throughly browsing the websites of such services as Judicial Arbitration Mediation Services (JAMS) and the American Arbitration Association. Community mediation centers also can be good sources for free or low-cost services.
A Classic Case
It’s a good bet the 2007 Farm Bill, when passed by Congress, will trigger conflict. Carolyn Penny, co-director of UC Davis’ Common Ground, the Center for Cooperative Solutions, notes the language of new programs and regulations is a ripe area for miscommunications and misunderstandings, especially between farmers and the government. “We often see an increase in requests for mediation services during these rollouts,” she says.
Common Ground administers the USDA-certified California Certified Agricultural Mediation Program (CCAMP). Potential clients seek resolution of issues that include farm-program compliance, rural loans, crop insurance, pesticide management and grazing on federal land.
“For example,” Penny explains, “an apple grower denied crop disaster relief after a windy harvest can request mediation of the USDA Farm Service Agency decision. Most of the CCAMP mediations we handle concern issues of crop programs (Farm Service Agency) or rural single-family or multi-family housing (Rural Housing Service).”
While CCAMP’s mediation services are free, some costs may be incurred if outside experts are needed to resolve the dispute. Penny says that a “very high percentage” of the organization’s mediation requests result in agreements reached in 30 to 45 days.
Resources
Mediate, Don’t Litigate: Strategies for Successful Mediation
By Peter Lovenheim and Lisa Guerin
Nolo Books: ISBN 1-4133-0030-8
nolo.com
Common Ground’s menu of services includes a conflict-resolution certificate program offering classes targeted at human resource personnel, private sector business key contacts, community leaders and attorneys. “A key component of this program,” says Carolyn Penny “is the theory-to-practice seminar, which offers students the opportunity to gain practical experience through placements in the areas of conflict resolution of most interest to them.” The program’s courses are offered both face-to-face and through web-based distance learning.
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