Monday, July 18, 2016

Why Litigate When You Can Mediate? -- Mediation Saves Money, Time & Stress

A condo board with a multimillion-dollar lawsuit, three years of aggravation and ulcers all around.

Everyone wants to feel heard, and, particularly in conflict – when emotions are often inflamed – it’s easy for understanding to be compromised and agreement to seem impossible. Mediation can remedy that. For those in conflict and perhaps contemplating litigation, mediation’s a highly effective alternative to long, drawn-out lawsuits, saving time, money and prolonged stress. It can also help mitigate both business and reputational risk, and even relationships strained by a dispute. With its broad applicability, the benefits of mediation have been long embraced by the NYC and NYS bar associations, by law schools as well as our inundated local, state and federal courts.  

            Co-ops and condos certainly have their share of disputes; conflicts pertaining to leases and deeds, noise and other warranty of habitability issues, property damage, disputes with management or board members and assertions of discrimination are but a sampling. In our notoriously litigious society, the road to the courthouse is often the path of choice. But considering the tremendous legal fees and protracted time it takes even simply to arrive at trial, is it necessarily the best choice? Furthermore, in general, some ninety to ninety-five percent of court cases are settled prior to the actual trial.

Consider the various, publicized lawsuits brought against the co-op board of directors of the renowned Dakota, home to many a celebrity over the years. Writing for The New York Times February 1, 2011, journalists Peter Lattman and Christine Haugheny asserted that whether or not any of the allegations against the Dakota’s board were upheld in court, the accusations were “a potentially embarrassing crack in the facade of one of the world’s most celebrated buildings and fodder for those who feel they have been wronged by that peculiar New York institution, the almighty co-op board.” Though there might be plaintiffs and defendants alike who could have their reasons for wanting the type of publicity generated by conflict, it’s fair to say most do not. Parties to disputes such as the Dakota’s could not only have saved significant time, money and stress by having gone to mediation, both sides also could have avoided unnecessary publicity.
           
            Mediation’s a voluntary, confidential process, in which a trained, impartial third-party – the mediator – helps facilitate a conversation between parties in dispute who have been unable to negotiate a resolution on their own. The beauty of mediation is that it empowers parties to explore creative options for resolution and settle their dispute on their own terms rather than face the uncertain outcome of a court’s decision. While court decisions are generally defined in terms of win-lose, parties in mediation are afforded the opportunity to negotiate a fair and mutually acceptable agreement. Mediation settlements are written up by legal counsel and are binding. By seeking mediation, parties are demonstrating a good faith effort to resolve their dispute; in fact, sitting down at the mediation table is, in and of itself, a step in the right direction. And because of the “ownership” the parties take in the mediation process, the likelihood of their commitment is enhanced.     

            Guided by mediation’s fundamental principles of neutrality and confidentiality, voluntariness and empowerment, the mediator creates a safe space, generally with some ground rules, in which parties are encouraged to speak openly. Meeting jointly with both parties, the mediator utilizes various skills and techniques to help break through positional barriers and guide the parties forward to resolution.

As most mediators agree, it’s never just about the money. Whether the parties have their legal counsel present is up to them; however, it is the parties themselves who “own” the mediation process, not the attorneys. Unlike in arbitration, another form of alternative dispute resolution, the mediator acts neither as judge nor decision-maker. A mediator also can help the parties navigate factors such as power asymmetries and cultural differences. As parties move closer to settlement, or perhaps in the event that both parties are found to be obstinately embedded in their positions, a mediator might decide to pause the joint mediation and meet separately with each party.

These separate meetings are known as caucuses and everything said in these meetings is also confidential, unless the mediator’s authorized to share what was discussed. In caucus, mediators frequently act as agents of reality, helping the parties assess risk and the strengths and weaknesses of their case. Because mediation is voluntary, parties can terminate the process at any time. And because mediation is governed by strict confidentiality, mediators cannot even be subpoenaed to testify should mediation be terminated before settlement is reached and a case eventually end up in court.

            Some perhaps might find it incomprehensible to imagine even sitting down at a mediation table with an adversary whose diametrically opposed positions and inflexibility have previously prevented them from resolving their dispute. Not only can mediation work, I have experienced discernible moments when the energy in the room shifts, where tensions and hostilities palpably begin to dissipate as parties move forward onto a path to settling their differences.

Types of mediation other than the more traditional “facilitative” style are the “evaluative,” whereby a mediator can express an opinion and may even propose a basis for settlement; “transformative” mediation, more focused on the relationship; and the “mandatory” initial mediation as ordered by some courts.

Many people today are more familiar with mediation in terms of divorce, unions and international conflict; however, the applicability of mediation is far-reaching. Whether a dispute involves co-ops, condos, neighbors, corporations, small businesses, partnerships, employees  – the list goes on and on – all can avail themselves of the significant and diverse cost-saving benefits of mediation. Conflict’s a part of life; but, that doesn’t mean it needs to drain the life out of us.


Mallory J. Stevens is a certified mediator and conflict resolution consultant in private practice in NYC. She’s an ex-international banker and also mediates in Spanish and Portuguese.

Article published in the July 2016 issue of The Cooperator, the Co-op & Condo Monthly)
http://cooperator.com/article/why-litigate-when-you-can-mediate