Hawaii Bar Journal
July 2011 #2.
Practitioners' Guide to Mediation
Hawaii State Bar JournalJuly 2011Practitioners' Guide to Mediation(fn1)by Gerald S. Clay and James K. HoeningMediation resolves disputes through the assisted exercise of a power which most disputants do not even realize they have until they no longer have it: the power to determine their own outcome by reaching a mutually acceptable resolution of their dispute. Virtually eve ry other dispute resolution process cedes all or part of the power to determine outcome to a third party. Mediation is an informal, voluntary, loosely structured process in which the mediator facilitates communication, encourages exchange of information and ideas, tests the reality of parties' perceptions and ideas, advises, suggests, translates what is said to detoxify the emotional climate, and at times recommends and persuades, all in the service of assisting the parties to reach their own agreement.
Properly done, the process is guided by two basic principles. First, that meeting interests (that is, needs, wants, hopes, fears-e.g., "How do I assure that I can get back and forth to work and run out to see clients as soon as they call?") is more important than taking positions (e.g., "I must have a company car"). Second, that adversarial distributive solutions (e.g., "As we dissolve our part n e is hip, every didn't you get is one less I get") are less desirable than collaborative integrative solutions (e.g., "Even though we are no longer working together, perhaps we can share advertising and public relations and some support facilities in order to build more clients for both of us").
Mediation is a no-risk proposition since the parties have the option of trying it first without giving up any right to proceed with arbitration or litigation. Attorneys regularly advocate the speed, cost effectiveness, and user-friendliness of mediation over an adversary process. Business lawyers sophisticated in the advantages of mediation are regularly including contract provisions directing parties to mediation prior to initiation of litigation or arbitration. These mediation "embedded clauses" are becoming standard fare at all levels of business, even among the largest businesses in America - e.g., - General Mills, Bank of America, and the Association of General Contractors.
One of the principal reasons businesses and their attorneys are turning to mediation is because the process presents an opportunity for creative solutions beyond the mere exchange of money or other tangible consideration. As is often seen in employment discrimination , harassment, and libel and slander cases, the party who feels that the other has violated an important personal principle may find a written or oral apology of value in compromising a position. Moreover, the mediation atmosphere, in which disputes areacknowl edged to involve feelings and egos as well as business aspects, can spur the settlement process by allowing the release and acknowledgment of these emotions in a neutral...