A Solo Practitioner Explains Why Mediation Is Often Preferred

Wednesday, August 5, 2009 - 01:00

The Editor interviews ADR Practitioner N. Janine Dickey.

Editor: Please tell our readers about your professional background.

Dickey: I began my legal career as a commercial litigator with a large New Jersey firm primarily representing large corporations, thereafter in a solo practice advising small businesses and non-profits on organizational development, risk management, staffing motivation and conflict resolution. I currently focus exclusively on mediation in New Jersey and New York.

Editor: Today, arbitration often rivals litigation in terms of both cost and manageability. In what cases can mediation be a viable alternative to arbitration?

Dickey: Mediation is not only a viable, but indeed the preferred process for resolving most conflicts. It is cost effective and parties retain control throughout the process. The mediation model affords flexibility to uniquely tailor the process as well as resolution options.

Editor: Some of the high cost of arbitration is due to discovery costs. How can this be ameliorated?

Dickey: Arbitration typically involves an extensive discovery exchange. While limits may be mandated, the tendency for over-inclusive discovery requests is inherent in the information-gathering process in order to assure a full evidential presentation to an arbitrator.

Mediation offers very significant cost savings over arbitration as the mediator facilitates a managed and limited information exchange prior to an initial mediation session. Obviously the cost/time savings in escaping depositions, obtaining expert reports, and legal fees can be enormous when a resolution is reached early in the conflict resolution process.

Editor: Does limited discovery mean that mediation is ill-suited for complex disputes?

Dickey: To the contrary, mediation is ideal for most complex disputes. In judicial or quasi-judicial settings, matters quickly get beyond the control of the parties and discovery is typically over-inclusive and costly.

In a mediation setting, the discovery process remains within the parties' control. Mediation typically begins with a facilitated limited discovery exchange. During the initial mediation session, the neutral assists the parties to weed out secondary or tertiary issues, and to focus on the determinative issues. Discovery is a continuing, but managed process.

Note also that in judicial and arbitration settings, parties in complex disputes often defer almost exclusively to counsel. Contrast this to mediation, which demands integral party involvement. This leads to greater understanding of factual, legal and business realities, putting the parties in superior positions to evaluate resolution options. Freed from judicial award constraints, creative solutions to complex problems can be fashioned.

Editor: How do settlement and award rules differ between arbitration and mediation?

Dickey: The simple difference is that an arbitration award typically mimics a judicial award. The arbitrator evaluates the evidence presented and renders what he or she considers a "just" award. Moreover, arbitration is typically binding regardless of a party's satisfaction or dissatisfaction with the arbitrator's decision.

The parties in mediation have direct input in creating and evaluating resolution options, then must agree on the resulting resolution. Even court-ordered "mandatory" mediation requires only good faith participation, not a forced resolution. This is particularly beneficial where parties have a continuing relationship.

Editor: What are some of the pitfalls of mediation?

Dickey: Parties must understand that mediation is not just another quasi-judicial process handled primarily by counsel, but rather requires active participation. In more complex cases it is beneficial and sometimes essential for upper level executives to be active players.

Parties and their attorneys must also step away from the adversarial mindset of strategic legal maneuvering and inflexibility of positions. A skilled mediator will assist the parties to work through these issues.

Since mediation is voluntary, there is no guarantee of an agreement being reached. However, the parties and counsel will always gain a greater understanding of the issues and legalities.

Choice of mediator is important. Mediation is interdisciplinary, thus in addition to a basic understanding of the law, effective mediators must be skilled communicators, creative, and experienced in the mediation process. Thus, experienced jurists, arbitrators or trial attorneys are not ipso facto good mediators, as skill sets differ; the former often operate with an evaluative mindset, and the latter stress facilitative skills. Likewise, the depth of substantive experience of a particular legal area does not assure a good mediator.

Editor: Do you recommend mediation be used in-house to resolve organizational conflicts?

Dickey: Mediation is particularly beneficial to facilitate viable ongoing working relationships after a conflict. A neutral can also help diffuse a potentially volatile situation from erupting into litigation. While many HR staff utilize trained staff to "mediate," an employee is likely to perceive an in-house mediator as biased. Use of an outside neutral is an effective and cost-efficient solution.

Editor: Would you give us some insight on emerging ADR trends? New models?

Dickey: Emerging styles of ADR reflect exploration along various continuums: facilitative vs. evaluative styles; party control vs. relinquishing control to the neutral; the extent that caucusing is utilized; binding vs. non-binding proceedings; and neutrals with process expertise vs. subject matter expertise. New models are being tried: "med-arb" (if no resolution is reached in mediation, arbitration follows); "arb-med" (the arbitrator withholds disclosing the award to permit mediation.) Corporate contracts are including mandatory mediation provisions and even pre-mediation "executive meetings" on the theory that top executives have the skill and incentive to overcome conflict barriers.

Please email the interviewee at n.j.dickey @att.net with questions about this interview.