Focus on Ethics & Civility, 0818 UTBJ, Vol. 31, No. 4. 25

Author:Greg Hoole and Paul Felt, J.
Position:Vol. 31 4 Pg. 25
 
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Article, Building on the Past and Looking to the Future: How Mediation Has Evolved to Become a Standard, Instead of Alternative, Form of Dispute Resolution

Vol. 31 No. 4 Pg. 25

Utah Bar Journal

August, 2018

July, 2018

Greg Hoole and Paul Felt, J.

When Paul Felt started practice, the primary and almost exclusive method of resolving disputes was the traditional adversarial process, which sometimes culminated in a negotiated settlement (often on the courthouse steps on the morning of trial), and other times left the parties relying on a judge or jury to determine their fate. The process of resolving disputes was, and still is, extremely costly, time-consuming, and unpredictable. The time that it takes a case to finally make its way through the litigation process and to trial led David Porter, Microsoft Corporate Vice President of Retail Sales, to quip: “Litigation is the basic legal right which guarantees every corporation its decade in court.”

Greater interest in alternative forms of dispute resolution began in the seventies. Parties, particularly sophisticated parties that were familiar with the risks associated with protracted litigation, were willing to try these various alternatives to save time and money. As lawyers and their clients became more familiar with these alternative processes, the popularity of alternative dispute resolution, and particularly mediation, took off.

The key benefits most commonly attributed to mediation include:

Self-determination and risk-avoidance

Lack of control and predictability are two of the greatest sources of stress and frustration in litigation. Mediation puts control of the outcome back into the hands of the parties. While mediation requires compromise, most parties recognize, as British poet George Herbert observed, “A lean compromise is better than a fat lawsuit.” Parties in mediation wisely give up what they think might be their best day in court to avoid what they realize could be their worst.

Early resolution

As the proverb says, “The wheels of justice grind slowly.” Saying this is one thing. Experiencing it is something different entirely. The average client is dismayed at...

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