Last month, this blog examined how often mediation is misunderstood by the public. This month, I’d like to take a brief look at how we can help the public understand what mediation is and how it can be of benefit to them. As you may know, the first cases I mediated were as a volunteer in small claims court. Many of the participants in those mediations wondered why they hadn’t been offered the option of mediation before filing their lawsuits and scheduling a hearing date.
Unfortunately, at least here in Massachusetts, budget cuts to the state court system have reduced the opportunities available to the public through ADR. Even in the federal court, mediations now are conducted almost exclusively by senior status judges or magistrate judges, whereas ten years ago, there was a robust panel of mediators available to litigants. Reduced budgets mean fewer opportunities to do more than keep the wheels of justice turning, however slowly. Exploring new alternatives to the traditional way of doing things takes time and resources, neither of which are available to court administrators.
So if earlier and more frequent opportunities for alternative dispute resolution are going to be difficult to come by through the court system, where can inroads be made to divert disputes that are prime candidates for mediation from the court system to qualified mediators? Two ideas spring to mind.
First, there are very few businesses that never encounter disputes that end up in litigation. Angry customers, shoddy suppliers, and disgruntled employees are just a few of the headaches faced by small businesses on a routine basis. Why not look to educate those businesses directly about what mediation is, how it is available to them, and how it can benefit their bottom lines? A two hour mediation with a customer who disputes a bill and has failed to pay for services rendered because they think the bill is excessive could save both parties time and money. Similarly, a mediation with a supplier whose services a business wishes to terminate could result in a far more amicable, and less costly, exit. Finally, a facilitation or mediation with an employee could resurrect a working relationship and could forestall costly litigation (multiple damages and attorney fees are commonly available in discrimination and wage and hour cases).
Second, most attorneys do not think of using mediation until after a lawsuit has been filed and pending for some time. One thing that I always tell my lawyer colleagues is not to wait to call me until after the lawsuit has been pending for months or even years. In many cases, if they are not able to resolve a matter prior to suit through direct negotiations, calling me early can save their clients time and money, and happy clients are recurrent clients who pass along the name of their favorite attorney to all who ask.
Do you have any other ideas as to how to bring mediation to the forefront of people’s minds when conflict arises? If so, please comment below. I’d love to hear from you.