Stuck In The Middle

You're jammed between a court and a hard place. Get free with third-party mediation.

"See you in court!" yells the irate vendor just before slamming the door. The botched deal will cost both sides thousands of dollars to correct, and frustration has erupted into blame and anger. As you reach for the phone to call your lawyer, you think about the past lawsuits you've been embroiled in-hours of digging out documents for discovery, months of depositions and motions, stacks of briefs and counter-briefs, days of tension in court, thousands of dollars in legal fees, and all for what? There has to be a better way.

There is. Alternative dispute resolution (ADR) is growing nationwide, providing individuals and businesses with cheaper, faster ways to resolve disputes. The two major types of ADR are arbi-tration, in which parties hire private judges to decide their cases, and mediation, in which neutral parties help work out solutions. The number of ADR cases submitted to the American Arbitration Association grew from 95,143 in 1998 to 140,188 in 1999. Compare those figures to roughly 45,000 cases per year in the mid-1980s. The association's case load for mediation grew 17.5 percent from 1998 to 1999, reflecting the rate of growth in recent years.

The growth may be because of increased recognition that mediation lets the parties involved control outcomes. In litigation and arbitration, outcomes are decided by arbitrators, judges or juries, whose actions can be unpredictable. Someone wins and someone loses.

In many cases, though, what's needed is for the two parties to bend a little. "Mediation leaves you in control of your settlement," says professor Kenneth Kandaras, director of the Center for Advocacy and Dispute Resolution at John Marshall Law School in Chicago. "You leave the mediation only if you're satisfied." That doesn't mean that sitting down with a mediator guarantees you'll get everything you want. Nor does it mean that you simply split the difference. "It pushes both sides to give up more than they'd like," Kandaras says. But you're the one deciding what to insist on and where you can bend.

"Business people recognize that mediation is a better alternative," says Toni L. Griffin, vice president for corporate communications for the American Arbitration Association. Griffin notes that while cases can take years to get through all the stages of litigation, mediations can literally be scheduled the next day. In more than 85 percent of the mediation cases filed, she says, the parties are able to reach settlements-and preserve their business relationships.

"Once you walk into court, you're finished," says Naomi Angel, an attorney with McBride, Baker and Coles in Chicago who represents trade and professional associations. Observing the rancor that builds during lawsuits is one thing that led Angel to start recommending mediation to clients and to seek the training needed to be a mediator herself. Many professional mediators are attorneys or former attorneys looking for more conciliatory ways to resolve problems. "Clients can feel they're still right in a moral sense without the need to be vindicated in court," Angel says. She acknowledges that people who've had to give up part of what they wanted in a mediation won't always walk out as buddies, but she says they may still be able to work together in the future.



Steven C. Bahls, dean of Capital University Law School in Columbus, Ohio, teaches entrepreneurship law. Freelance writer Jane Easter Bahls specializes in business and legal topics.

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This article was originally published in the November 2000 print edition of Entrepreneur with the headline: Stuck In The Middle.

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