Mediation is win-win option for civil disputes during pandemic

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Even before the COVID-19 pandemic gripped the country, trial courts nationwide had struggled for years with civil docket backlogs.

These backlogs have only increased during the pandemic, with courts across the state again suspending jury trials due to the omicron surge. Despite the new and innovative technologies Michigan’s trial courts adopted to keep many court functions moving before the latest shutdown, increased backlogs in civil jury trials are inevitable. This leaves litigants and lawyers alike pondering their options for resolution outside the courtroom.

One option that has grown in popularity over the past decade or so is mediation, also known as facilitation. This process involves a neutral mediator who can help the parties strike their own settlement on their own terms. The mediator does this by getting people on all sides of the dispute talking and identifying the pros and cons, including the risks of litigation vs. a negotiated settlement.

Unlike a civil lawsuit that goes to trial and is decided by a judge or jury, a mediator is a facilitator who has no power to render a resolution to the conflict. The resolution is agreed upon by the parties and something they own vs. handed down by someone else.

While arbitration is the first and best-known option for resolving a civil dispute — it involves a neutral decision-maker or panel and the parties agree the decision is binding — there’s still a winner and a loser. The difference from a civil trial? There’s no appeal process.

While it may sound strange, the ideal outcome in any dispute is when everyone walks away with varying degrees of unhappiness. This is exactly what happens in a mediation settlement, which rarely results in one side walking away feeling like it has lost. By striking their own deal, the parties buy in to the process and, while each may feel like they have “left money on the table,” they nonetheless “own” the outcome. Importantly, mediated settlements always yield finality, typically at a fraction of the cost of litigation.

Mediation caps the risk for all parties and takes the uncertainty out of the process. Plus, it’s a voluntary process void of any requirement to reach an agreement. If no agreement is reached, the parties still can go to trial.

The top 10 benefits of mediation include:

  1. Greater control: Each party is directly involved in negotiating its own agreement and no settlement can be imposed, enabling the parties to achieve their strategic objectives.
  2. Faster outcome: Mediation often is scheduled and completed much more quickly than court cases, especially amid the previously mentioned backlogs and staffing shortages.
  3. Reduced costs: A mediated settlement ends the litigation, significantly reducing the costs to the parties when compared to trying the case in court. While a trial brings finality in a dispute — someone wins and someone loses — the decision can be appealed and tried again, which can result in a lengthy and expensive court battle.
  4. Confidentiality: Everything said during mediation is confidential to the parties — unless specifically agreed upon otherwise.
  5. Preserved or restored relationships: Misunderstandings can be overcome and communication is improved between the parties.
  6. Mutual benefit: Each party walks away more satisfied with the outcome, significantly reducing the need for additional legal action.
  7. Convenience: Mediation takes place at a venue convenient for all parties.
  8. Neutral and safe space: Each party gets the opportunity to have its voice heard, which allows the parties to work past the conflict and seek resolution.
  9. Voluntary: Any party may withdraw from mediation at any time.
  10. Foundation of cooperation: Mediation provides a forum for future problem-solving.

Mediation can be a win-win option in civil disputes as parties and the courts continue to navigate the pandemic.

Jonathan Lauderbach is executive partner leading the Midland office of Warner Norcross + Judd LLP. A former Midland County Circuit Judge, he concentrates his practice in commercial litigation and also regularly serves as a mediator in civil disputes. He can be reached at jlauderbach@wnj.com.

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