Mediation: Traditional (late)
& our 3-D Mediation (early)
What is Mediation, generally:
Mediation is an effective approach to resolving disputes. It is defined by the Massachusetts Supreme Judicial Court Uniform Rules on Dispute Resolution as “a voluntary, confidential process in which a neutral is invited or accepted by disputing parties to assist them in identifying and discussing issues of mutual concern, exploring various solutions, and developing a settlement mutually acceptable to the disputing parties.”
The parties must agree to mediate their dispute, agree upon a mediator and determine the parameters for the mediation according to their needs. Mediation can be done by parties themselves without lawyers or with lawyers representing the parties in the mediation. There is no third-party decision maker in mediation, like a judge, a jury or an arbitrator. Mediation and arbitration are two very different types of ADR processes. A mediator facilitates the negotiation in which ultimately the parties have control over the outcome. In arbitration, the arbitrator decides the case and most of the time, an arbitrator’s decision is binding and cannot be appealed.
Mediation can take place early, as discussed below, instead of filing a complaint or opting for arbitration. Or it can take place later, well after litigation has begun and after discovery and sometimes ever after motions have been made. This late mediation is the more traditional use of mediation, seen by litigators as part of the litigation process. Both the traditional late mediation and the earlier use of it and their differences are discussed below.
3-D Mediation: Define; Develop; Decide
DRC’s unique structured early mediation model for today’s disputes
3-D Mediation (“3-D/M”) is a different model than traditional mediation. It serves a different purpose, takes place at a different point in a dispute and has a different format.
These differences are important in terms of providing the client with real value. 3-D/M is for people who want to resolve their case sooner rather than later and want to have more control over both the process and the result, and for whom the following things are important:
3-D/M is an alternative to the entire litigation process
3-D/M is different from traditional mediation. It is not part of the litigation process. It happens instead of and before a lawsuit is filed with the court and before and instead of litigation’s long discovery process. 3-D/M begins earlier, before the parties have spent most of their time and money; before the parties’ energies, emotions and resources have been drained; before any further damage has been done to key relationships; before the parties are so emotionally invested and entrenched in the adversarial process that it’s hard for them to de-escalate and negotiate productively.
Traditional Mediation – Part of the litigation process
Most traditional mediation happens as a part of the court-based overall process called litigation. Litigators view mediation as part of the litigation process that occurs long after a complaint has been filed with the court, after the lawsuit and the civil procedure process have begun. It happens after the parties have spent around a year to two years, or longer, doing something lawyers call “discovery”.
How 3-D/M works
3-D/M is intentionally designed for the purpose of reaching the best resolution possible. It includes three steps: Define, Develop and Decide. It consists of three mediation sessions.
Phase One: Define (first mediation session): Identify interests & goals of all parties, determine what relevant information needs to be shared, discuss the need for any neutral expert(s), and agree upon a short timeframe for exchanging all relevant information.
Phase Two: Develop (second mediation session): Give the parties their voice, their “day in court”, their opportunity to be heard by the other side (and the mediator) and to actively listen to the other side. This often includes expanding the discussion of interests and needs of the parties, addressing of any liability issues and the potential scope of damages, the possible inclusion of additional stakeholders, and a check in to see if any other information needs to be exchanged.
Phase Three: Decide (third mediation session): Develop, design and devise options for resolution. (Depending on how complicated the case or the issues are, this might take more than one session.) Decide together and by agreement what the elements of the final resolution will be.
Conclude by drafting a written memorandum of understanding as to the terms of the resolution, to be subsequently reduced to a formal written resolution agreement.