Don't let clients see mediation as a last resort

Charity Burke
BridgeTower media newswires

There’s a common thought among some clients that mediation is a last resort to resolving their dispute.

While that is certainly not true, it’s up to lawyers to fully educate their clients on the legal process and all their options in pursuing litigation so they can make informed decisions.

A lawyer’s first step should include mediation

For some lawyers, mediation is often not their first thought. As they work to analyze the situation and help the client reach the most desired result, some only look at outcomes that would result from a court ruling. Instead, they should accept the creativity and freedom mediation can offer.

“Lawyers should see mediation as a case and client management tool,” said Ashley Turner, the Attorney on Staff at Oakland Mediation Center (OMC).

“The time, expense, and mental and emotional energy of ongoing litigation against the outcome needs to be considered and explained thoroughly to clients.”

OMC is one of 18 community resolution centers across Michigan. The center has received positive feedback from both clients and lawyers who use mediation to resolve disputes. According to its post-mediation survey results:

• 90 percent of clients are satisfied.

• 92 percent of lawyers are satisfied.

• 92 percent of clients and lawyers would recommend mediation.

Lawyers can eliminate the stigma of mediation as a final resort by educating a client about mediation and its benefits at the beginning of litigation.

Clients want something that may never happen

While some clients know about mediation, they may not realize the benefits of using it sooner rather than later in a dispute. The longer a situation goes on, the more positional it can become and the harder it is to resolve. And, for those hoping to have their day in court, they may never get it. Only about 1 to 1.5 percent of cases go to trial. The rest are settled before they get to that point.

Many people often mistake arbitration for mediation. Facilitative Mediation is always neutral and involves a third party, whose responsibility is to help both parties come up with a solution. That third party works with each party to facilitate an information sharing, communication, and decision making process to support the parties in crafting an agreement that meets the needs of all of the parties. Each party may not walk away with everything they want, but their needs will be met. With arbitration, an impartial adjudicator decides the outcome, meaning there is always a winner and a loser. With mediation, the goal is a win-win situation.

Mediation saves clients time, money and stress

Mediation offers numerous benefits to attorneys and their clients, many of whom are having their first experience with the legal system. The voluntary process can be scheduled within days and only lasts a few hours or a few sessions. Mediators and lawyers trained by OMC exceed the requirements by the Circuit Court roster. In addition, clients have much more control over the outcome.
Lee Ravitz has practiced law in Oakland County for more than 40 years. He says he's found OMC to be very helpful in resolving even the most difficult cases. “The advantage to mediation is that both parties save a lot of time and money,” said Ravitz. “It also saves the court a lot of time having to resolve disputes that could otherwise be resolved by a mediation center.”

According to Turner, mediation can assist in developing a strategy on how to pursue a case based on information learned at mediation. Additionally, if someone has a hand in crafting their agreement, they are more likely to stick to it. There is also the opportunity to restore relationships between parties with mediation. This can be an invaluable benefit at a time when a client is at a loss, betrayed or trying to become whole again.

Lawyers trained as mediators are effective communicators

Lawyers have the opportunity to become trained mediators. In Michigan, there are no state requirements that require certifications to mediate. However, if the court refers mediation, those mediators must have completed a 40-hour State Court Administrative Office (SCAO) approved mediation training. Lawyers who have gone through mediator training have the benefit of using learned skills and communication techniques with their clients and opposing counsel.

OMC offers multiple trainings for lawyers, including general Civil Mediation, Domestic Relations Mediation, and Domestic Violence screening, all of which are approved by the SCAO. To see the requirements and options for becoming a trained mediator, visit OMC’s website at mediation-omc.org.

Mediation can help any conflict, whether is it on the playground, in the family room, a conference room, or courtroom. As long as there is no felony criminal activity nor domestic violence, using a facilitative mediator to resolve a dispute is a great alternative to litigation. Being educated in facilitative mediation techniques does not detract from a lawyer’s effectiveness as an advocate. They are simply counseling their client as a whole person and allowing them to make the best decision. Mediation is proven to work and not every case needs a court ruling to end with a satisfied client.

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Charity Burke is the executive director of Oakland Mediation Center, and has 22 years of multi-state experience in mediating cases.