at the bargaining table
The late Chief Justice of the United States Warren E. Burger once observed, “The existing judicial system is too costly, too painful, too destructive, too inefficient for a truly civilized people. ... Reliance on the adversarial process as the principal means of resolving conflicts is a mistake that must be corrected.”
Here, then, are a half-dozen good reasons to try mediation first, adapted from “Mediation: A New Way to Resolve Land Use Conflicts” by Edith M. Netter, Esq. and from the Land Use Mediation Program of the State of Maine Judicial Branch.
- It's confidential. Parties present their ideas to the mediator in an informal, private setting, with their lawyers by their side if they wish. There's no need for grandstanding when the disputants and their mediator have signed a confidentiality agreement.
- You can control the outcome. The parties are not obligated to reach an agreement. You can withdraw from the process if you wish and move on to arbitration or litigation.
- It's a way to separate facts from feelings. Mediation often exposes motivations for people's behavior, such as personal animosity, that litigation does not. The mediator is trained to defuse the tension and help the two sides discuss their differences on neutral ground.
- It's creative. You may discover choices you didn't know you had. For example, courts can generally only award money in design- and construction-related disputes.
- It improves professional relationships. When there's a successful outcome, the parties are more likely to work cooperatively in the future. And for controversial projects, such as view loss in a community, mediation reduces the political fallout for the decision-makers.
- It's quick and relatively inexpensive. Mediation is typically a day-long affair, and fees range from $150 to $500 per hour compared to litigation, which can cost $25,000 to $100,000-plus per side for land-use disputes. Mediation helps you reach an agreement that will let you get on with your life—and possibly keep you out of court in the future.