Student Spotlight: Tanya Woods, Mediation Team Member

To Be or Not to Be, Mediation or Trial

To be in mediation or not to be in mediation, that is a question that law students, lawyers, and judges are debating in courtrooms, boardrooms, and every other room that lies in between.  Partners at law firms, solo practitioners, clients, and judges are scrutinizing more carefully the practice of law and the rising financial costs associated with every phase of a dispute.  More importantly as the number of disputes being litigated increases so does the cost of litigation.  Clients are seeking more creative solutions to their disputes, judges are demanding rigorous settlement conferences early on, and courts are mandating mediation more often in various fields of the law-especially housing and family law.

What is mediation?  It is one of the alternative dispute resolution (ADR) methods growing in popularity across the country.  Mediation is a method of resolving a disagreement when the parties cannot do it alone or even with the assistance counsel.  It can be used to resolve a dispute before it ever rises to the level of a claim, at any point up to trial, or even after trial.

Why the new trend? Several reasons come to mind.  Mediation a process whereby the parties fashion a legally binding solution, avoid the exorbitant cost of a trial, and the mediator acts as a facilitator not as a judge, arbiter or advocate.  First, because the solution is one that is mutually agreeable, the parties are more apt to adhere to the terms and conditions of the agreement.  Second, the cost of a trial to the client is high.  Mediation often includes only one or two meetings with the opposing party before an agreement is reached, which reduces time off from work, the emotional toll, and legal fees for the parties. Finally, the mediator is not an advocate but acts as a neutral party with the tools and skills that enable the parties to develop an agreement they created themselves, rather than a ruling doled out by a judge who has a temporary interest.  Additionally, the parties are in the driver’s seat, not the attorneys; so the process feels to the parties like having a conversation guided by the mediator.

How does this skill benefit the new lawyer?  The trend is moving slowly but surely to the acceptance of mediation as a predominant method of resolving conflict.  There are some areas of the law that are firmly entrenched in the adversarial system but as the costs of trials rise, lawyers and judges are strongly recommending parties resolve their differences prior to stepping into a courtroom. If you are the lawyer with not only the traditional lawyering skills but with ADR training as well, you can now become the go-to person on the team that the others look to for expertise when a case must be settled pre-trial or the parties have agreed they do not want to litigate but they need formal assistance.

To mediate or not to mediate, soon in many instances you won’t have a choice.  Be prepared to seize the day.

Tanya D. Woods

JD Candidate | Class of 2013

President, ADR Society – LUC Law

Mediation Team Member, 2012 and 2013

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