"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.
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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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