DennisBeaverSeptember 2, 2006 (Original publish date) • By Dennis Beaver

Mr. Beaver, we are weeks away from being involved in a potentially expensive lawsuit over a business that I sold to friends last year. The personalities involved are all very strong, and it has become almost impossible for us to be in the same room without getting in an argument in less than ten seconds. This transaction has nearly destroyed a 30 year friendship, and my wife and I are being accused of things we have not done.

Our attorney has recommended that we try mediation as a way to settle the matter. I believe that you have written about this form of dispute resolution before, and if I recall correctly, you occasionally serve as a mediator. I’ve heard both pros and cons about mediation, and have been warned that it is possible to be forced into an agreement that I will regret. Can you give a few recommendations for anyone about to try mediation? — Thanks, Julian.

What is mediation?

Long before lawyers, written law, and judges, there were mediators who helped people settle their differences. The oldest cultures and nations on our planet — China, Japan, Africa and especially where Judaism, Islam and Christianity took hold — strong traditions of mediation and conciliation developed.

Mediation is as old a concept as mom and dad helping to settle a dispute between brother and sister, or a village elder sitting down with tribal members fighting over ownership of animals. Mediation is, in fact, the oldest and historically most effective way that societies have resolved their differences outside of resorting to the courts or violence.

Today, it is the new buzzword in law, and, according to one experienced mediator I spoke with, “forces lawyers to use their skills to help clients fairly resolve a problem, something that for many attorneys — being fair — is a difficult concept to master. The legal profession has one major fault that mediation beats down very well; a feeling that lawyers must get as much as they can for their clients, without regard for the damage they are doing to long-term relationships. A good mediator preaches the message of simply being practical and fair for the good of everyone involved,” she believes.

How does it work?

In a nutshell, the parties in a dispute — before or during litigation — either agree or are ordered by a Superior Court judge to select a neutral person to meet with everyone and try to work out a resolution. The actual mediation usually takes place at a lawyer’s office, and some time before the actual mediation, letters or other documents are usually provided to the mediator, setting out what the dispute is about.

The most important feature of mediation is that it is a completely confidential procedure — which means that everyone involved is encouraged to be open and completely truthful, because whatever is said cannot be used in court. It is almost the only time in a legal proceeding where you can express real feelings, even acknowledge making a mistake, and what you say cannot be used against you in court, even if the mediation breaks down.

I have conducted meditations between neighbors over petty problems that eventually took on huge proportions. Once I was able to convince everyone that we were going to get this matter settled, rapidly a spirit of conciliation and openness filled the room. Stern faces softened to the point of tears. Once that happens, it’s usually easy from that point on, leading to hugs, more tears and the phrase, repeated over and over again, “I’m so sorry this happened, please forgive me.”
In terms of “cool” in the legal profession, things do not get any more cool than this, and I was the guy who pushed them all over the edge into settlement. In my opinion, before anyone is permitted to file a lawsuit, mediation should be obligatory. If it does not result in a settlement, you can always file suit later.

A simplified look at the process

A mediation begins by the mediator welcoming the parties, and explaining how the process works. There may be an opening statement, with each side setting out their position, and then the real business of mediation begins. A good mediator discovers what the parties truly need, and gently (but sometimes not so gentle) move them toward compromise. Meetings will usually be held separately with each side, as the mediator runs back and forth, room to room, attempting to bridge the gap.

If an agreement is reached, it must be put in writing and contain language making it admissible in court. This is a critical stage, and a potential weakness in the mediation process where settlement can occur at 4 in the morning, with important language forgotten due to fatigue.

Forced to agree?

When my reader speaks of “being forced to agree” to something that you might later regret, he is absolutely correct. “Mediators sometimes play games that are intended to break down psychological barriers to resolution,” my mediator friend stressed. “While things usually begin nicely enough — coffee and donuts, a very large lunch — the longer the mediation drags on, fewer the “creature comforts.”

“Meditations can last many hours, depending upon the complexity of the case, often into the wee hours of the morning with no one permitted to go home. This is a strategy used by some mediators intended to literally wear the parties down, to encourage moving off of an unsound position. Hunger, thirst, fatigue, the need — and sometimes refusal — to allow use of the bathroom, all slowly break down the desire and ability to fight over little issues. But when you quickly write up an agreement under those conditions — and sign it — often settlers remorse results, especially where the agreement might not be the product of adequate thought and reflection,” my mediator colleague cautions.

To sum it all up, I believe in mediation and recommend it, provided you are fully aware of how the process works, and understand the risks of saying “yes” too quickly.

Dennis Beaver practices law in Bakersfield and enjoys hearing from his readers. Contact Dennis Beaver.