403 / 432
GAZETTE
AUGUST/SEPTEMBER
1994
Med i a t i on - Cou ld it ma ke your
prac t i ce mo re prof i table?
By Brian MacMahon*
The search today for better ways to
meet our clients' needs requires that
we explore new avenues for resolving
their disputes. While litigation,
negotiation and arbitration are the
primary tools of dispute resolution,
they are by no means the only ones.
Backlogs in our courts may result in
litigants having to wait for years for
an outcome, at which point the
financial and human cost of litigating
may have exceeded the value of the
dispute, the relief sought may no
longer be needed, or it may have lost a
great deal of its worth.
In other jurisdictions, public
recognition is growing that litigation
is not a panacea for all disputes. The
result is an increasing use of
Alternative Dispute Resolution (ADR)
methods - most commonly
mediation or arbitration, to resolve
disputes.
The ADR movement has evolved with
the aims of addressing the cost,
delays, adverse publicity and damage
to relationships of litigation, of
simplifying law suits, and of
substituting creative, negotiated
agreements for imposed judgments.
The use of alternative methods has
already received support from the
highest level of our
judiciary.Speaking at a Seminar on
ADR for the Construction Industry
Judge
Hugh O'Flaherty
said: "It is no
part of the court's function to adopt
any sort of elitist disposition in
relation to other dispute resolving
bodies. On the contrary, as judges we
recognise that the duty of such bodies,
be they arbitrators, administrative
tribunals or (providers of alternative
dispute resolution services) . . . is the
same as ours: to seek to do justice
between the parties". Some support
has also come from our legislature in
the Judicial Separation and Family
Law Reform Act 1989, sections 5
and 6.
Brian MacMahon
Why Consider ADR?
When our clients approach us with a
problem, seeking our advice on how
to get relief, our training and
experience in litigation tend to
condition us to suggest litigation early
on, as the remedy of first resort. In
litigation our clients relinquish control
of the outcome of their dispute by
transferring decision-making
authority to a judge or arbitrator. To
date disputants have had no forum in
which they
themselves
, helped and
advised by their lawyers, could
devise
their own
solution to their
dispute, knowing fully the true
interests underlying their case.
Arbitration and Mediation
Distinguished
Arbitration is a familiar, usually
binding process which in many
respects simulates a court hearing.
Arbitration may be more speedy,
private, flexible, less expensive and
less formal than litigation. The cost of
the arbitrator's time and of the
arbitration venue are, however,
usually a cost to the parties and not, as
in litigation, to the State.
Mediation by contrast is a
voluntary,
non-binding, without prejudice,
confidential
process. Unlike an
arbitrator (or judge) the mediator has
no
authority to impose a binding
decision, though he or she may
suggest ways of resolving the
dispute. The mediator's role is to
bring the parties together, to
facilitate analysis of the dispute
and to foster an atmosphere that
allows the parties
themselves
to
reach a settlement.
How Mediation works
Mediation allows the parties to retain
control of, and participate more
actively in, the outcome/settlement.
The mediation process restores
communication and builds trust. It
breaks impasses by dispelling
unverified assumptions and unrealistic
expectations. The mediator who is a
facilitator, not a decision maker, helps
to eliminate problems of ego and
personality. Mediated solutions tend
to be "win-win" and not "win-lose".
Mediation is private, quick, cost
effective, flexible and informal. It
helps to preserve the relationship
between the parties, where relevant.
Most importantly, mediation
works. National statistics of United
States Arbitration and Mediation
Inc. indicate a settlement rate
of 80% - 85% of cases using
mediation.
We already know that the vast
majority of all cases commenced in
the court system settle before hearing.
Settlement is often clearly in the best
interest of all concerned. Mediation
fosters early, cost-effective settlement
by introducing a new element into the
traditional negotiation procedure, the
mediator. The mediator is an advocate
for settlement and is not an advocate
for either side. ADR techniques are
used to condense the evidence and to
foster constructive negotiations,
assisted by the mediator.
379