“Mediate. Alleviate. Try Not to Hate.” I think these are pretty good words to live by, but what I hear a lot, both as an attorney and as a certified mediator, is: “I don’t want a mediator to decide my case! I want a judge (or jury) to decide it!” First off, the chances of your case making it to trial are slim to none. According to the State of Michigan’s Court Caseload Report, of the 17,811 pending cases that were resolved in 2018, only 154 of them were resolved by trial. That is 0.86% of all the cases resolved in 2018 in the entire state! What that means is most cases resolve by way of settlement or by other alternative means.
Why are people resistant to mediation? I find it is because many people are confused about what the mediation process actually is. Many people hear the term “mediation” and think it is the same thing as “arbitration.” However, these processes are completely different in very important ways. While arbitration is a very restrictive and costly process, mediation can be the exact opposite.
What is Arbitration?
Arbitration is a process where the parties to a dispute agree to hire a third person (or a panel of people), the “arbitrator,” to act as judge and jury to decide who wins. The parties must pay the arbitrator for his time, which can get very expensive very quickly. The process is generally faster than a lawsuit and the rules that the parties need to follow are less stringent. For example, in most arbitrations the rules of evidence do not apply. The parties each have a chance to present their case. Sometimes this is done in a live hearing and other times the arbitrator will decide the case based on the written summaries submitted by the parties. When an arbitrator makes a decision, the parties are pretty much guaranteed to be stuck with the decision. While arbitration awards can be challenged in court, getting the arbitration award overturned is extremely difficult. A court will only set aside an arbitration award if there was fraud, corruption, or serious misconduct by the arbitrator.
What is Mediation?
Mediation is (or should be) a collaborative process where the parties to a dispute agree to hire a third person, the “mediator,” to help them figure out how to resolve their issues. Unlike an arbitrator, the mediator does not decide who wins. The mediators function is the help the parties talk to each other in a productive manner so that the parties themselves can make their own decision about how their problem should be resolved. Mediation can occur before a lawsuit is filed, in an attempt to avoid the lawsuit, or it can occur during a lawsuit and even after a judgment is entered in lawsuit while a case is up on appeal.
Why do I love mediation?
There are so many reasons that I love mediation as a tool to settle disputes, but here are my top ones:
- Voluntary. The parties do not have to reach an agreement. If the parties don’t reach an agreement, they can file a lawsuit or continue with the lawsuit that has already been filed.
- The parties maintain control. While both parties may walk away a little unhappy after a successful mediation, they can both live with the outcome. Judges, juries, and arbitrators are unpredictable and that means that at least least one party (maybe both) will walk away very unhappy with outcome.
- Cost. Mediating before a lawsuit is filed is much less expensive than filing a lawsuit. If the parties are already in a lawsuit, mediating and coming to a resolution is much less expensive than taking a case to trial, which depending on the complexity of the case could cost tens of thousands of dollars.
- Maintain Relationships. Many times disputes arise between parties that will still have to work together after the dispute is over. If the parties can work out a solution to their issues without attacking each other, those relationships are more likely to be preserved.
- Confidentiality. What is said in mediation stays in mediation. Nothing that is said or presented in mediation can be used against a party in a court hearing anywhere else, unless the parties agree otherwise. If the parties file a lawsuit, what is filed becomes public. Depending on the situation, the parties may not want the public to know about the details of the dispute.
Mediation is the best tool for resolving most disputes from simple disputes between neighbors to complex commercial disputes with several parties. If you have a dispute with someone and you do not want to go through the hassle, cost, and uncertainty of a lawsuit or arbitration, please give me a call at (248) 349-6203 to see if mediation is right for you.
 Blog title courtesy of my favorite band, INXS. INXS. “Mediate.” Kick, Atlantic Records, 1987.