The Cherokee Board of Commissioners has proclaimed this week “Mediation Week in Cherokee County.” Along with the American Bar Association, our commissioners are raising awareness of the process of mediation (not to be confused with meditation) as an effective and efficient way of resolving disputes, expediting justice, relieving court congestion and preventing costly delays in the justice system.
Most lawsuits settle before going to court. Often, though, the parties have made an enormous financial and emotional investment in the dispute before it is resolved. Trials are unavoidable in some cases, but fortunately, other means of settling conflicts have become more common.
In 1990, the Supreme Court of Georgia established a Commission on Alternative Dispute Resolution to implement a statewide alternative dispute resolution system. In 1993, the Office of Dispute Resolution for the 9th Judicial Administrative District (a 14-county area in north Georgia, of which Cherokee is a part) was established and our judges, who supported the establishment of the office, have since ordered or encouraged parties to participate in mediation prior to a final hearing in their cases.
Ten years after the establishment of the office, approximately 1,930 cases were referred to mediation. Last year, the District ADR office received over 6,500 referrals.
This column will address some frequently asked questions about mediation.
Q. What is mediation?
A. Mediation is a process in which disputing parties select a neutral third party to facilitate a mutually beneficial, negotiated settlement. Unlike arbitration, a mediator does not render a judgement which is binding on the parties. An informal and non-adversarial process, its objective is to help the disputing parties reach a mutually acceptable agreement.
Q. What is the role of the mediator?
A. Most mediators provide an environment which encourages open, constructive communication between the parties. Mediators are trained to assist the participants in identifying issues and interests, explore possible bases and avenues for settlement, and help the parties reach a voluntary agreement that is acceptable to both parties.
Q. Why mediate a case?
A. Mediation has several advantages, particularly when utilized early in a conflict.
Flexibility. No one is more familiar with the specific circumstances of a case than the parties involved, which means that the parties are in the best position to craft an agreement that best suits their needs. The parties are not limited to standard damages or remedies, and the mediator will encourage consideration of a wide range of options. Mediation produces innovative solutions.
Cost effective. If a matter settles, further expenses of litigation can be avoided. If the matter does not settle, the financial investment in mediation is usually minimal compared to the cost of extended litigation, and the parties generally have a better understanding of their cases and the position of the other side.
Efficient. Parties are often frustrated by the time it takes to resolve a case. Mediation puts the process in the control of the parties, who choose the mediator, set the meetings and prescribe the terms of the settlement.
Confidential. Mediations are conducted in private, removing the dispute from the public eye. Prior to mediation, participants must sign a confidentiality agreement which provides that all communications made by the parties during the process will be kept confidential. Also, if desired, the settlement agreement itself may, under certain circumstances, remain confidential.
Supports Relationships. Disputes often involve family members, parties to a business relationship, or parties to whom a continuing relationship is important. Divorcing parents, with the strong encouragement of the courts, are frequent participants in mediation. Mediation reduces hostility and is more likely to preserve, or at least prevent the destruction of relationships between the parties and allows communication in the future.
Q. How successful is mediation?
A. In general, the process has a very good track record.
Q. Is mediation used only in lawsuits?
A. No. Mediation is increasingly being used as a means of addressing conflicts before they rise to the level of a lawsuit. Many commercial contracts include mandatory mediation in the event of a dispute. Businesses have established mediation programs to deal with co-workers disputes, unfair employment practices, harassment, discrimination, and other employment related issues. Government agencies are being required to implement mediation or other ADR programs. Schools have developed programs which teach and enable children to mediate conflicts between students. Individuals are calling upon mediators to help them resolve conflicts. Recognition of the heavy cost of litigation has made mediation a popular alternative.
Dana M. Thompson is an attorney with the Canton firm Thompson, Meier & King. She is a certified mediator with the Georgia Commission on Dispute Resolution and the Ninth Judicial District Office of Dispute Resolution. One of the first mediators in Georgia, Ms. Thompson has mediated cases since 1993 and also serves as a Special Assistant Attorney General.