ADR CORNER
ADR CORNER
A Fundamental in Mediation : Considering the Alternatives
HANK JACKSON
Having started practicing law in Florida 35 years ago , when mediation was in its infancy , and now later in my career focusing on serving as a mediator , I recognize that a lot has changed in the world of mediation .
To be sure , the amount of research , scholarship and opinion surrounding mediation has exploded and is ever increasing . This is reflected in everything from law review articles to mediation education to YouTube videos . The reason is undoubtedly because mediation has proven so successful as an effective dispute resolution method . We should truly commend all those involved in creating , growing and championing the now robust mediation process .
While the boom of new information and resources regarding mediation is clearly a positive development , I suggest we always remember a never-changing fundamental of the mediation process — focusing the parties on thoroughly considering and assessing their alternatives .
Status Quo — Continuing the Litigation Alternative
At some point in time , at least one of the parties believed that filing a suit was the best option ( assuming it is not pre-suit mediation ). As a result , the first alternative is staying the course , which is continuing the litigation . This alternative has risks that the parties probably have already partly considered , such as attorneys ’ fees and costs , loss of time , and overall uncertainty .
However , often the parties have not extensively assessed all the risks in continuing the litigation . This includes both the types of risks and the magnitude of the most obvious risks . Usually , the simple scheduling of mediation starts the parties reassessing the continuing litigation risks . Even more so , the mediation session should serve to make clearer the continuing litigation risks because the parties will need to compare those risks to alternatives . As an example , counsel often understand and appreciate the limitations of the judicial system and relief — parties not so much . Continuing the litigation requires compliance with numerous rules of procedure and time deadlines , satisfying each element of a cause of action or affirmative defense , offering expert testimony , establishing legally permissible damage models and remedies , and meeting strict evidentiary requirements for admissible evidence . Of course , the specifics of each case are unique and prove the inevitable point — the devil is in the details when evaluating continuing the litigation .
Settlement Alternative
Settlement is the alternative to continuing the litigation . It is limitless in its potential scope and variation — largely unrestrained by all the rules governing continuing the litigation . Settlement has the key advantages of bringing certainty to the parties and can be customized in ways that judicial relief is legally incapable . The flexibility that is possible through settlement is what makes mediation a creative endeavor and a potential settlement so strikingly different than continuing the litigation .
Some common examples of settlement terms that are not possible with continued litigation include payments over time , payments to or from persons not parties in the suit , terms reducing tax consequences , general releases ( including pertaining to persons not named in the suit ) and nonmonetary provisions such as confidentiality and non-disparagement clauses . The number and type of terms that can be negotiated into a settlement agreement depends on the case and the imaginative resourcefulness of those involved in formulating the settlement .
The Opportunity for Settlement
It is when the parties understand the risks of continuing the litigation compared to the key advantages of settlement — flexibility of terms and certainty of result — that there is an opportunity for settlement . But this is only an opportunity . The actual settlement often comes through the hard work of fashioning the precise terms of settlement — many times in a creative and customized manner .
Although some parties may begrudgingly accept that settlement could be a better alternative than continuing the litigation and other parties may eagerly embrace the opportunity of self-determination through settlement , the essential assessment they must make is the same . Are the proposed settlement terms better than the risks associated with continuing litigation ? In a mediation where this question is answered in the affirmative , there is settlement .
Conclusion
In emphasizing the importance of comparing alternatives , I do not suggest ignoring the human factors and dynamics that impact the mediation process — many of which create or hinder an overall environment conducive for resolution . However , a fundamental of mediation remains a thorough consideration and assessment of the parties ’ alternatives ( continuing litigation vs . settlement ).
Hank Jackson has practiced law for 35 years and now serves as a mediator . He is a Florida Supreme Court Certified Civil Circuit Mediator and is Board Certified in Business Litigation by the Florida Bar . He can be reached at 561-271-1878 or hank @ hankjacksonlegal . com or visiting http :// hankjackonlegal . com .
For additional ADR tips and resources , visit : www . palmbeachbar . org / alternative-disputeresolution-committee .
PBCBA BAR BULLETIN 1