An ounce of mediation is worth a pound of arbitration and a ton of litigation!” — Joseph Grynbaum

As I sit in my office and read this article by Charles Jung in the Bulletin of The Bar Association of San Francisco (BASF) entitled Cost-Effective Trial Tools it only reinforces my decision to go into Mediation and why I believe Mediation is the best approach to resolve most conflicts.

I do not have any information on the case other than the one presented in the article. It is an employment discrimination case. Jung seems impressed by the use of modern technology trial tools by both parties during closing arguments. But then, as the plaintiff loses her case and the defendant seeks costs of nearly $1,000,000, Jung wonders how can a case be really worth 1 million dollars???

His research, as the title suggests, presents ideas of how to use technology in litigation without breaking the bank. As I read the article I think: “Both parties would had been better off if they had mediated their case.”

As mentioned in my earlier post, mediation is a private process in which the parties voluntarily meet to discuss their issues and come up with a solution that best works for them. Mediation is a very successful tool in finding resolution for most conflicts; it works really well for most employment, family and community dispute cases.

In an attempt to convince litigants that, for the most part, finding alternatives to conflict resolution in the workplace is their best alternative, the United States Department of Labor (USDOL) wrote a report in which they assessed possible solutions to workplace problems, and it concluded that:

  1. employment litigation is a costly option for both employee and employer, being very costly to employers in general;
  2. litigation can be very stressful to the parties as the process can take years to be resolved (due to, besides other reasons, overburdened court dockets);
  3. it can also be unsatisfying as the terms achieved, for the most part, are determined by a judge and it may not be what they expected;
  4. and finally, the report encourages alternative methods to resolve disputes “where appropriate and to the extent authorized by the law”. It reinforces the idea that the goal of mediation is to “secure a solution both parties accept voluntarily” and come up with.

The more I work in this field the more it makes sense to me that when a conflict arises the parties should consider mediation before starting litigation. Mediation does more than just produce agreeable settlements, it also helps the parties change the quality of their interaction from negative and destructive to positive and constructive. At the same time produce an outcome that is designed by the parties and that will best fit their needs and interest. As opposed to abide by what a stranger (the judge or arbitrator) will determine.

If in the case mentioned above, both parties had agreed to mediate their dispute instead of choosing litigation, the outcome could have been very different. Of course, not all cases will be solved in mediation nor all parties will want to mediate. But if given the option of whether to mediate or not, giving it a try can be a life changing opportunity.

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