August 21, 2015
It took some time for me to appreciate the value of mediation as a tool for resolving legal disputes. In the early days of my career, there were far fewer lawyers, and they were all on a first-name basis. We knew each other and the judges, and the judges knew us. We would never have dreamed of handling a case out of town in a jurisdiction with which we were not familiar. Lawyers from Atlanta and elsewhere would never consider handling a case here without associating a local lawyer to be the laboring oar. We would encounter lawyers who were on the opposing side of cases on a regular basis at docket calls, at lunch, in the halls of the courthouse, or on the streets, and we would talk respectfully to each other. How a case could be settled by agreement was a constant subject when appropriate. Of course, this resulted in many early settlements, and coupled with the fact that the civil litigation process then was considerably faster and cost far less, there was no need for a neutral mediator to act as a “go-between.”
The situation is far different today. For better or worse, there are a lot more lawyers, more law, and more causes of action, i.e. reasons to sue. It often takes years for the courts to resolve a civil case, and it can cost a fortune. Today, there are over 800 lawyers in Chatham County, many of whom would not recognize one another. Lawyers from Atlanta, New York, and elsewhere are routinely in Chatham County courts handling cases. Trial lawyers in Savannah also handle cases in courts all over the country. Heated disputes about process and discovery tactics and abuse often dominate hostile conversations between counsel. Meaningful settlement discussions, without a neutral mediator, do not happen.
So now, mediation as an alternative to litigation in the courts is essential to the process. Many courts, including the Chatham County Superior Court, require mediation as a condition to assigning a case for trial.
Mediation dates back to the Middle Ages, but it became widespread in the United States about thirty years ago after lawyers began expanding their use of the discovery rules in the Federal Rules of Civil Procedure and the Georgia Civil Practice Act, which, among other things, escalated the costs of litigation and extended the time of the process, in some cases, to several years. The Georgia Supreme Court has adopted Alternative Dispute Resolution Rules that include rules governing mediation. All court-mandated mediation requires a neutral mediator who is registered with the Georgia Office of Dispute Resolution. Registered mediators are required to have completed at least forty hours of training.
Mediation offers several important benefits that traditional litigation does not.
A mediated settlement requires the consent of all parties. That means the parties to the dispute are in control of the outcome. Litigation in the courts is decided by a judge or jury, and at least one party, maybe all, will be unhappy with the outcome. A mediator cannot decide the dispute. The mediator will typically meet separately with the parties and discuss their respective interests. Judges and juries cannot do this. The parties must agree, and if they do not, the litigation in the courts remains available and uncompromised.
Trials are public; mediation is confidential. The parties and their counsel are required to sign an agreement that everything that is said and done in the mediation process is confidential and will not be disclosed to anyone. The parties are not permitted to subpoena or question anyone about statements or occurrences in the mediation process.
A settlement is always less expensive than continuing to trial and, perhaps, a subsequent appeal. Mediation substantially enhances the possibility of settlement. A mediation session typically lasts one day, even in highly complicated cases, and statistics show that a majority of cases that go to mediation are settled.
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