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Independence and Kansas City Missouri Metro Area Attorney Les D. Wight. Over 34 Years Experience / Personal and Attentive Service - [MEDIATION]
Les D. Wight is an experienced mediator and is knowledgeable of the law. If a mediator is needed, contact our office.
"Traditional
litigation
is
a
mistake
that
must
be
corrected...
For
some
disputes
trials
will
be
the
only
means,
but
for
many
claims
trials
by
adversarial
contest
must
in
time
go
the
way
of
the
ancient
trial
by
battle
and
blood.
Our
system
is
too
costly,
too
painful,
too
destructive,
too
inefficient
for
really
civilized
people."
Chief
Justice
Warren
E.
Burger,
(Ret.)
U.S.
Supreme
Court.
The high cost and long delays associated with the trial of civil matters (including family law matters) often make litigation an impractical method of resolving disputes. It is not uncommon for the attorney's fees, expert witness fees, court reporter fees and other related costs to soar beyond one’s means. Parties increasingly find that they are spending more to litigate than it is worth.
Because the current legal environment discourages the early settlement of disputes, society is demanding a new approach for resolving disputes more efficiently. That new approach is mediation.
WHAT IS MEDIATION?
Mediation is a process for resolving disputes by which an independent mediator assists the parties in reaching a mutually satisfactory settlement. It is an extension of the parties own negotiations and is sometimes referred to as a "supercharged negotiation."
A mediation session involves a discussion of the dispute by the parties, as opposed to the formal presentation of witnesses and evidence such as takes place in a trial or arbitration. The session will normally be attended only by the mediator, the parties and their attorneys. Because of the informality of the process, a mediation can usually be completed in a day or less.
The mediation process is entirely voluntary and non-binding. The mediator has no power to render a decision or to force the parties to accept a settlement. Rather, the mediator's role is to assist the parties in their negotiations by identifying obstacles to settlement and developing strategies for overcoming them.
A mediation session is private and confidential. It is normally held in a private office or meeting room and no public record is made of the proceedings. If no settlement is reached any statements during the proceedings are inadmissible as evidence in any subsequent litigation.
A mediation session typically begins with a joint meeting of the parties, their attorneys and in some cases, insurance company representatives. The mediator first explains the format and discusses the confidential and non-binding nature of the proceedings. The mediator will then ask the attorneys for each of the parties to make a presentation of their case, identifying the issues in dispute.
Following the joint meeting, the mediator will usually separate the parties and begin meeting with them in a series of private, confidential meetings called "caucuses". In these caucuses, the mediator works with each of the parties to analyze their case and develop options for settlement. Normally, the mediator will caucus numerous times with both sides until the case either settles or it becomes apparent that settlement will not be reached.
Mediation is different from an arbitration in that the mediator does not render a decision. Instead, mediation allows the parties to make their own decisions and fashion their own settlement. The mediator generally doesn't make recommendations but rather, allows the parties to make their own decisions based on a realistic analysis of their case.
WHY MEDIATION WORKS
Most domestic matters settle. Most people want to settle their case. Settlement offers discussed in Mediation are not admissible in Court which give parties a chance to explore areas beyond what a court could even order. Consider the following factors:
First, negotiations between parties or their attorneys may never take place without the assistance of a third party mediator. Attorneys often fear that the making of any "reasonable" settlement offer will be taken as a sign of weakness or will be used by the other side as the starting point for the next round of negotiations. Mediation provides a safe environment for negotiation because the mediator can control and direct the communications. In this fashion, unproductive discussions can be avoided and concessions or proposals will be communicated only if they are likely to lead to a settlement.
Second, in those cases where some negotiations have taken place, they are unsuccessful because the parties lack essential negotiation skills. Attorneys may be more interested in posturing, than in resolving disputes. As a result, they often employ hard bargaining tactics which emphasize the differences in their positions rather than seeking a common ground for settlement. Since the mediator's job is to keep the parties focused on exploring productive avenues to settlement, posturing and hard bargaining are often reduced or eliminated.
Third, mediation provides the opportunity for all parties to meet for the express purpose of discussing settlement. All decision-makers necessary to resolve a problem are normally present. These decision-makers, who otherwise may be unavailable or distracted by other business matters, are able to focus their entire attention on reaching a settlement.
Fourth, during the mediation, each party is given the opportunity to directly educate and influence their opponents in the opening presentation. Important issues can be emphasized and facts can be presented in a more favorable light. Also, the intensity of a party's feelings or emotions can be conveyed. As a result, the mediation session normally provides each side with a more realistic view of the opposing position (one not filtered through lawyers) and often results in the consideration of settlement proposals that otherwise would have been rejected.
Fifth, mediation offers each party a "realistic" look at their case and what results they are likely to achieve in court or arbitration. As the parties become clear on what they can realistically expect to achieve, their positions on settlement become more reasonable and flexible.
Sixth, mediation assists the parties in developing options for settlement. The more options that are developed, the greater the chances of success. Experience demonstrates that attorneys often excel in developing facts that support their positions but bog down when it comes to developing settlement options. The mediator can assist the parties to clarify their real objective and to consider alternatives that might be overlooked by attorneys engaged in battle.
Last and not least, a trial or even depositions in a family law case can do damage to the continuing relationship between the parties that may need to be maintained over the years in cases involving children. Even parties with grown children can be impacted by the “blood” that is spilled in a contested matter. The high cost of litigation can be measured in dollars and in emotional cost. The dollars are just easier to identify.
CONCLUSION
The bottom line is that mediation works! It works because it brings all necessary parties to the bargaining table where they can "realistically" evaluate their positions and safely explore settlement options. It works in settling over 85% of the cases in which it is utilized, including those where the parties have been unable or unwilling to negotiate, or have taken unrealistic or intransigent positions.
Today, parties litigate because they know of no better alternative. However, as the benefits of mediation become more widely recognized, it will undoubtedly become the most utilized tool for resolving civil disputes in the future. The cost of the mediation is a small amount to pay with the savings in actual dollars and emotional costs involved in continuing the dispute.
© 2012
Law Offices of Les D. Wight
530
E. 23rd St. S.
Independence, MO 64055
Phone: (816) 836-4000
Fax: 1-888-546-1546
Toll Free: 1-800-650-4909
Office hours: 8:30 am to 5:00 pm Monday thru Friday
Late and weekend appointments available
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