Pulling Punches

As competition in business intensifies, squabbles and conflicts are bound to occur.   Some businesses duke it out in court, others find a different way to resolve their disputes.

            The disputes themselves aren’t going away anytime soon-sociologists call conflict a “growth industry.”  So its no wonder that mediation, as an alternative to litigation is growing in popularity.  Mediation is assisted negotiation.  Third parties help two or more sides involved in a dispute reach a settlement that’s agreeable to both sides.

            It is an alternative to litigation.  Mediation avoids the expense, time and frustrations of the legal system-thus its name: “alternative dispute resolution” or ADR.  ADR does not replace litigation but it does offer disputing parties another option.

            “One of the nice things about mediation is that it doesn’t prevent other processes from going on,” said Moshe Cohen, president of Negotiating Table in Cambridge.   “It can come in at many different points in the process.”  A growing trend among many industries is in-house programs that try to resolve disputes among workers long before they become full-blown complaints.  Parties already embroiled in litigation may also opt for mediation at any point in the process.

             The only criterion for mediation is that both parties must agree to mediate.  The voluntary nature of ADR is both its strength and weakness, said Charles Doran, executive director of Mediation Works, Inc. of Boston.  “We all know there are plenty of disputes in society,” Doran said.  The real challenge for ADR is to bring disputes to the table.  Oftentimes people who are embroiled in a dispute will say, ‘I’ll see you in court.’  They don’t very often say, ‘I’ll see you in mediation.’  Our task is to encourage people to try mediation and see its benefits, and how much time, money and emotional stress it can save them.”

            While everyone agrees mediation offers significant savings over costly litigation, putting an actual dollar figure on those savings is difficult.  “Since mediation spans so many different domains-family, business, international, public policy, environment, employment-measuring costs is difficult,” said Sarah Cobb, director of the program on negotiation at Harvard Law School.  “Each of these different domains has a different way of measuring cost.  The cost savings to a family of negotiating a divorce settlement and parental rights are going to be different from the cost savings to a large corporation trying to negotiate a strategic alliance.  The story is that negotiation is cheaper, faster and easier on relationships.”  Although formulating “costs” is difficult, nonetheless some literature is beginning to emerge on the cost benefits of mediation vs. litigation.  In the book, “Controlling the Costs of Conflict” by Slaiken and Hasson, the authors report on side-by-side comparisons of mediation and litigation at several different companies.  One company reported an 80 percent reduction in outside litigation fees through the use of mediation to resolve conflicts.  Another company reported a 75 percent reduction in outside litigation fees over six years.  A third reported a 50 percent decline in outside litigation costs and a drop in cases from 263 to 28.  A University of Connecticut study on mediation vs. litigation in divorce cases showed better outcomes on every measure, particularly parenting options and the degree to which parents remained involved with the children after divorce.  “Women even get more alimony through mediation,” Cobb said.

         Despite its growing use, however, mediation as a profession has few guidelines.  There are no rules, no educational standards, no licensing requirements, no governing body overseeing practitioners.  “Anyone can call themselves a mediator,” Doran admitted.  But Massachusetts does have a confidentiality statute.  In order to be protected under this statute and avoid being subpoenaed by any party in the dispute, a mediator must have 30 hours of mediation training, have the parties sign an agreement to mediate and have four years of professional experience (or be accountable to a mediation firm that has been in existence for at least three years).  Court appointed mediators are also protected under the statute.  Mediators bring their own style and expertise to a dispute.  Parties often want mediators to have knowledge of the subject area-employment law or family law-but it is not necessary.

         Some mediators may take an active role in the negotiations by making suggestions, evaluating the case, predicting what a judge might rule or setting the agenda, for example.  Others act more like facilitators, letting the parties make all the decisions and simply keeping them focused and talking to each other.  In whatever form its used, mediation can be a very powerful tool in all types of disputes.  “Its even being used in criminal settings,” Cobb said.  “Even in very serious crimes, mediation is being used to bring offenders and victims together to decide on reparations.  From civil disputes to criminal settings, mediation-like processes are being used.”
 

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