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Monday, April, 29, 2013

            By:  Erik C. Johnson, Esq., Creative Dispute Resolutions, LLC        

Our struggling economy has recently caused many individuals, attorneys, companies, agencies, and other groups to examine more closely any alternatives that may exist for resolving their disputes aside from protracted litigation.  Whether the dispute involves a divorce, a contested estate, a commercial transaction, an automobile accident, a contract, an employment decision, or anything in between, litigation is bound to be expensive, restrictive, and time consuming.    

Recent financial and budgetary pressures have served to accelerate the already growing momentum forming behind the use of mediation and other forms of alternative dispute resolution (“ADR”).  Nevertheless, while mediation is starting to show signs of fulfilling its oft-repeated promise of being the “wave of the future,” there are still a number of misplaced concerns that are causing it to be underutilized.  Here is a list of the five biggest myths that continue to exist regarding mediation.  

Myth #1Discussing or proposing mediation is a sign of weakness.

One of the biggest misconceptions out there regarding mediation is the notion that by simply bringing it up as an option, it automatically signals weakness.  This notion seems to stem from the mistaken belief that mediation requires one party to capitulate or to compromise its positions and interests.  Attorneys who regularly take their clients to mediation, however, know this isn’t the case.  Mediation is designed to facilitate constructive communication, to examine creative solutions to the problem, and for the parties to seek some form of “win-win” resolution.  It is not a process by which one side has to give in or give up, and it does not prohibit or constrain the parties from impressing upon the other side the strengths of their case.

This concept of equating mediation with weakness also falls apart because it fails to take into account the significant financial, temporal, and emotional costs that accompany the litigation process.  Consequently, a proposal to explore mediation should be viewed with this economic reality in mind.  Rather than signaling that one party is not confident in his case, an offer to mediate (or even an early inquiry about the prospects of settlement) should be seen only as an acknowledgement of the magnitude of the costs that lay ahead for both sides and, thus, a demonstration of fiscal sanity.          

It also should be noted that there are several easy ways to avoid creating any misperception of weakness.  Attorneys who want to inquire about settlement and mediation can simply inform their counterpart that it is their standard practice to do so in every case given the financial burdens of litigation on the parties.  Another option is to make mediation a mandatory step in an organization’s dispute resolution program or a contractual obligation in a commercial transaction.  Either way, standardizing the inquiry helps cut down on any misperceived notion of “weakness.” 

Myth #2Agreeing to mediation might open the floodgates to more litigation.

Another common misperception about mediation is that companies or organizations who agree to mediate and settle their disputes will inevitably encourage future litigation from third parties.  These companies fear that word will somehow spread that they are “easy marks,” and that the floodgates will then open with people looking for free money.  Companies may have a legitimate concern about doing something that would invite others to sue, but agreeing to mediate their current disputes is not likely to do so. 

 In fact, if anything, seeking to resolve one’s disputes through mediation may actually help diminish the likelihood of future lawsuits.  Unlike litigation, mediation is a confidential process – one that is not conducted in the public’s eye.  Many settlement agreements reached through mediation also contain some form of a confidentiality provision, which serves to quell any discussion the parties may have with others about how much money or other benefits exchanged hands.

Moreover, an early resolution to the dispute ends the parties’ respective searches for witnesses, documents, and other forms of evidence.  If those searches continue over the course of a long discovery period, more and more people become aware of the dispute and the specific allegations being made.  This can be especially important in a workplace or business setting when litigation may ultimately cause many co-workers and business affiliates to become involved.  Mediation can help the parties avoid this scenario.     

Myth #3Going to mediation requires the parties to reveal all their evidence.

Mediation generally works best when there is a free flow of information and ideas among the parties.  That being said, there is no requirement that parties come to mediation and present every argument they plan to make if the case does not settle.  In fact, attorneys representing parties at mediation often make a mistake when they treat the mediation as an extension of the litigation process and spend the majority of their time arguing and posturing as though they were in front of a jury. 

If the disclosure of certain information is an initial cause for concern, it is important to step back and to examine whether withholding it makes sense in the broader context of trying to reach a resolution.  Is this information important enough that you think it might change the other side’s view of the case?  Or is this information or argument too inflammatory such that revealing it might actually decrease the chances of settlement?  The reality of litigation is that discovery and pre-trial disclosures strip away any real chance of springing a “Perry Mason” surprise on the other side; so, if the information is important, why not use it when it has a chance of doing some good?

Myth #4Mediation won’t work because I’m right, and I want my “day in court” to       prove it. 


This myth about mediation is told far too often.  Clients frequently express themselves in stark black-and-white terms about who is right and who is wrong, and inevitably cast themselves as the former.  It does not seem to dawn on many of them that the other party is across town meeting with his attorney and simultaneously claiming to be right.  While there are certainly times when one party is 100% the victim and entirely blameless, it is more often the case that gray areas exist and mutual blame or shared responsibility and entitlement are at play. 

Here is where a good explanation of the mediation process and the realities of that proverbial “day in court” can do wonders.  Parties are not asked during mediation to relinquish the mantle of being “right,” but only to listen to the other side and to see if a resolution can be found.  The decision to seek a resolution becomes even easier when the parties get a better appreciation of what will happen if the case actually goes to trial.  Contrary to popular belief, judges and juries do not have unlimited time and resources to examine the entire history between the parties, and their decisions are often made with limited and contradictory information.  Furthermore, trial and summary judgment “victories” are often pyrrhic given the expenditure of money and time that it generally takes to get to that point.

Parties who talk of having their “day in court” are frequently disappointed and dissatisfied when it finally comes and the opportunity is not what they thought it would be.  In contrast, mediation allows these same parties to put all of their issues on the table and to maintain ownership of the decision-making process, which usually leaves them more satisfied because their story was heard, and more likely to abide by whatever agreement they came to because they played a crucial role in forming it.  

Myth #5Mediation is a waste of time because this case will never settle.

Some parties refuse to participate in mediation because they just know the case will never settle.  In reality, the vast majority of cases settle at the conclusion of mediation.  Many disputes seem intractable on the surface because the initial positions articulated by the parties can often be very far apart.  As long as the parties attend in good faith, mediation is helpful at bridging even the widest of chasms because it promotes constructive dialogue, creative problem solving, an examination of the parties’ underlying interests, and a sobering reality check at the alternatives if the case does not settle. 

Moreover, mediation can play an important and useful role even if the parties fail to reach a global settlement.  Oftentimes, attorneys and parties mistakenly view mediation as a failure if the day ends without an iron-clad agreement.  This view misses many of the other beneficial aspects of mediation.  Generally speaking, even if the mediation does not conclude with a full signed settlement agreement, each party leaves with a better understanding of the other side’s interests and motivations, a better understanding of the strengths and weaknesses of his or her own case, and a better appreciation of what it might take to resolve the dispute.  Mediation also can narrow and streamline the issues in a dispute, and place the parties much further down the path of settlement than they had been before.  With all of these potential benefits, mediation is hardly ever a waste of time.    

Mediation isn’t the answer for every dispute.  There are some instances in which a legal precedent needs to be established, or a dramatic imbalance of power between the parties makes mediation impractical.  But, for the vast majority of disputes, mediation offers the parties a less expensive, quicker, more effective, and more satisfying path towards resolution than litigation.  Dispelling some of the most common myths about mediation can only help the promotion of a process whose time has long since come.  

Erik Johnson is an employment law attorney and mediator with Creative Dispute Resolutions, LLC – a Maryland-based ADR group featuring a number of retired judges and prominent local attorneys with different subject matters of expertise.  The group can be reached at (301) 977-8002 or