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 a process we designed to carry out our mission of helping our clients use the right dispute resolution process for their situation so they can achieve the best possible resolution. 3-D/M takes clients through three structured phases: Define, Develop and Decide how the dispute will be resolved.
To truly recognize the value 3-D/M provides to clients, it is vital to understand the basic differences between traditional mediation and 3-D/M in timing and structure.
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”. Discovery is the formal, long and cumbersome process by which the parties, working through their lawyers, exchange information. Often, mediation gets put off even longer and takes place after lawyers have filed certain “motions” or petitions to the court seeking some sort of relief.
Then, late in the litigation process, after the parties have spent anywhere between $50,000 and $100,000 or more per party, the suggestion of mediation comes from the lawyers, as an alternative to going to trial.
Traditional mediation is not an alternative to litigation; it’s part of it. The rationale many lawyers offer for waiting so long to use mediation at this late stage rather than sooner is that the parties need to do discovery and gather sufficient information.
Here is the flaw to this incomplete logic: It is useful for the parties and lawyers to gather sufficient information before they go to mediation. But there is no reason why the necessary exchange of relevant information cannot be built into the mediation model. Another alternative process – Collaborative Law – has done just that; its structure includes the mandatory sharing of information. The exchange of information doesn’t have to take a year and a half. The parties and lawyers could agree up front to share whatever information is necessary. They just don’t. But 3-D/M does. It addresses the need to exchange relevant information at the outset of the matter, and efficiently builds information sharing into its Phase One.
Lawyers also offer three reasons for going to mediation at this late stage instead of going to trial: (1) to avoid the uncertainty of what a jury will decide; (2) to avoid the extra cost of preparing for and trying a case; and (3) to avoid the extra time and the continued drain on the clients’ emotions, resources and energy that comes with continuing to go through the trial process. While these are valid reasons to avoid trial, one should not overlook the fact that all three of these stated reasons for mediating at this late stage were also there before the beginning of the litigation.
3-D/M is an alternative to the entire litigation process
Here is how 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.
3-D/M takes place when parties recognize that they need assistance to resolve a dispute, but haven’t yet drawn battle lines, early enough to preserve their important relationships. 3-D/M if offered while parties are still ready, willing and able to productively negotiate toward options for resolving the dispute. It takes place while things are still private and confidential and haven’t yet been made public by a filing with a court.
The sooner the parties can get to mediation, the better their chances to reach the best result possible. The early timing of 3-D/M is the key to expanding and keeping open all the possible options for resolving the dispute. Many of these options are no longer available by the time the parties and lawyers get to the point that the lawyers suggest traditional (late) mediation.
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.
Preliminary Conference: Design. Prior to the first mediation session, the mediator will either meet with or hold a telephone conference with the attorneys to discuss the case, to go over the structure and the rules of engagement for 3-D/M. The mediator may request, or agree to receive and review any written submissions and materials the parties may want to offer.
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.
Total Time: This is largely up to the parties, their timetable, the complexity of the dispute and their respective needs, but for a case without any complex issues or facts, approximately two to six months.
3-D/M Mediator cost structure:
A retainer of $1,000 per party shall be paid to DRC prior to the Preliminary Conference and shall be applied to the Preliminary Conference and the review of any submissions or materials. Any unused balance remaining after all submissions and materials have been reviewed shall be refunded to the parties equally prior to the Phase One/Define mediation session. Similarly, any additional payments due to cover the cost of the Preliminary Conference and the review of submissions and materials shall be invoiced and paid by the parties prior to the Phase One/Define mediation session. Payment for Phase Two/Develop and Phase Three/Decide shall be paid prior to each of those mediation sessions. Any payment for Follow-up work shall be billed and then paid after the 3-D/M process.
Total Cost of Mediator: Under $5,000 per party*
* There are two additional costs to this mediation process: (1) Each respective party’s attorney’s fees, which are the responsibility of the parties and (2) the cost of any experts needed. These two added costs will be far less than they would be in litigation. Experts in 3-D/M are neutral experts, jointly hired to independently serve and advise both parties and to help the 3-D/M process reach its goal of achieving the best possible resolution. The cost of the expert(s) is shared by the parties. Further, the quality of the expert advice is enhanced because it is truly independent and unimpeded by the need to spin their advice to favor only one party. Like the cost of neutral experts, the cost of the mediator is also shared equally by the parties.