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How we resolve our disputes

Entries in evaluate (3)

Monday
Aug182014

When is Mediation not Mediation?

Last week, the Milwaukee Journal Sentinel ran an article about the Wisconsin Medical Malpractice Mediation Panels (MMP), with the headline “Medical Mediation Rarely Provides Closure”. The only problem with the article and the headline is that the MMP is not really about mediation.  The Wisconsin Legislature and the Director of State Courts both agree that “[a]lthough referred to in the legislation as ‘mediation,’ the work of the panels is more accurately described as ‘early neutral evaluation.’”  Early neutral evaluation (ENE) is a valid form of alternative dispute resolution, but it is distinct from mediation.  ENE involves an individual or panel giving a valuation of the case early in the process, in order to facilitate resolution.  This is what should take place in the MMP process but it is not what takes place in real Mediation.

True Mediation is one of the most positive developments in modern dispute resolution.  In the truest form of Mediation, the mediator does not decide or force a resolution; rather, using a structured process, a mediator endeavors to work with the parties to develop a resolution.  Mediators have an ethical obligation to provide a process for the informed and self-determined choices of participants.  Self-determination, confidentiality, and creative problem-solving can render outcomes superior to many other dispute resolution processes, including litigation.     

I do not know how effective the MMP is in resolving medical malpractice complaints.  At least one attorney familiar with the process has stated she is unaware of any cases in which the panels were instrumental in resolving the case.  On the other hand, repeated studies have shown that mediation is an extremely successful form of dispute resolution, resulting in a nationwide settlement rate of more than 75%.  Regardless of settlement, over 80% of participants are glad they took part in the process.  True Mediation is highly effective in resolving disputes across a broad spectrum of personal, legal and business conflicts.

Tuesday
Jun182013

Facilitative vs. Evaluative Mediation

In my last post, I discussed the difference between neutral evaluation and facilitative mediation. Since that time, an article on the same subject appeared in the Wisconsin Lawyer, the official publication of the State Bar of Wisconsin. One of the authors of the article is Michael Moore, a fellow soccer Dad whom I have known for many years. The article does a great job of defining the two formats. Unlike me, the authors define both of these types of dispute resolution methods as mediation. I believe that only the facilitative method is true mediation. Neutral evaluation is more like non-binding arbitration or a mock trial. It is basically a win-lose scenario, but with non-binding results. Facilitative mediation is a search for a win-win scenario. Nonetheless, the article is an excellent introduction to the uninitiated, as well as a timely reminder to those who may not always remember that there is another way. Too often, litigation attorneys are like the man with a hammer — to them, every problem looks like a nail.  

Mr. Moore and his co-author clearly set forth the differences between what they consider to be the two most prominent types of mediation. What surprises me is that title of the article, “Take a Different View: Explore Mutual Interests with Facilitative Mediation,” seems to imply that the facilitative format is something new and different. Facilitation is different than evaluation, but it is hardly new. While it does seem to be gathering a following here in Wisconsin somewhat more slowly than in other states and parts of the country, I have written about and practiced it for several years now. I have noted that mediation should be considered primary dispute resolution, and that the shuttle diplomacy type of mediation (focusing on positions rather than interests) brings to mind Sam Goldwyn’s declaration that “If you want to send a message, call Western Union.”

Facilitative mediation is not easy to do well. Arbitrators and neutral evaluators can sit back and let the parties develop and deliver their positions. Facilitative mediators must probe to find the parties’ true interests and to develop creative solutions to the problem. But I agree entirely with the Wisconsin Lawyer article authors who conclude that “With the help of a facilitative mediator, parties are often able to resolve their disputes without the expense, frustration, economic loss, and business and personal disruption entailed in pursuing litigation.” Amen to that.

Saturday
Apr062013

Neutral evaluation

Sometimes when I am called upon to mediate a dispute, what the parties really seem to be looking for is a neutral evaluation of their legal case or negotiating position. While I am happy to do that for the parties, I make sure to explain to them that this is different than mediation. It requires the parties to present to me, in summary form, most of their case. The parties need to consider whether or not they want to share all of that information with the other side, either directly or through me. If they do, it is really like non-binding arbitration. This can help the parties get a more realistic view of their chances of prevailing at trial and, therefore, promotes settlement. However, if the parties or their attorneys are not communicating well, a mediator may still be necessary to facilitate negotiations. On the other hand, if mediation is attempted and reaches an impasse, neutral evaluation may help to break the impasse.

There are no rules declaring what type of dispute resolution is best for resolving any particular type of dispute. It depends on the nature of the parties’ relationship and the dispute. It also depends on how much time and money the parties want to spend trying to resolve it. All of these considerations should be laid out and discussed before attempting to resolve any dispute. One size does not fit all. Your mediator should be familiar with all of the dispute resolution options and discuss them with you before proceeding. In Wisconsin, the statutes require a judge to discuss with the parties the desirability of alternative dispute resolution before trial. Don’t get tunnel vision and lock in on only one option. As I have said before, options are good. Keep them open.