Wednesday, December 9, 2015

Mediation: It Works, So Let's Use It!

Concussions and Mediation

A few years ago more than 4,000 NFL players and their wives filed a lawsuit against the NFL, claiming the organization had been concealing for years and even decades what it knew about the long-term dangers of repeated hits to the head. The NFL rejected this claim, stating that they had issued warnings consistent with medical research available at the time. In 2013, the league and the lawyers representing the 4000+ players and wives met in a conference room instead of a courtroom in an attempt to iron out their differences. This was because a U. S. District Court Judge ordered the case to be taken to mediation, rather than follow the normal court process. A mediator was appointed, who served as an unbiased third-party to help reach a compromise between the two parties. Although the opinion of the mediator is not binding, the opinion and settlement bargain can be accepted or rejected by the football players and the NFL. This led to a more reasonable discussion between the parties and helped in the compromising phase of this lawsuit.

While there is no guarantee that the two parties will always accept the bargain set forth by a mediator, going to mediation before the courtroom is something the United States needs to see more often. The benefits of legal mediation have been highlighted by many other experiences like this that illustrate the value of hearing out both sides of the case in a more casual setting. Although many attorneys are hesitant to become involved in legal mediation, the American Bar Association should take measures to make legal mediation a more incorporated part of the US legal system because the benefits of mediation outweigh the risks. 

Two Partners and Two Paths
There are two business partners, Bert and Ernie, who have grown estranged due to some disagreements. Now Bert wants to leave the company. Ernie, however, is requiring Bert to pay huge fees for early termination of contract. They both hire attorneys, and a legal battle begins. Now pause for a moment: what are Bert and Ernie's options? The first would be to follow the regular court system approach. 

In this case, the case would be brought before a judge, who acts as a neutral third-party. His job is to determine the proper repercussions and actions to be taken in each case. Once a judge has made a decision, he issues a written judgment that reflects the will of the court.  This court route requires a great deal of time, money, and patience - none of which Bert and Ernie have ample amounts. In the end everyone comes out angry and damaged, burning all bridges. 

Let's now look at the second choice: mediation. Bert and Ernie instead hire a mediator to look at their case and help them come to some kind of agreement or compromise. Mediators in many ways act like a judge does, other than the fact that the opinion and decision of a mediator is not legally binding. In the end, this disagreement only took a few weeks rather than many months. Legal fees were reduced to just paying a mediator, and since a compromise must be accepted by both parties, bridges can be maintained.

A Brief History of Mediation
The act of mediation itself has existed for centuries in one form or another in ancient civilizations and societies. Indeed, it is believed that "the communal nature of traditional societies, the kinship system, strong societal norms, cultural traditions and religious beliefs ... encouraged the development of process in which third parties with high social status assisted disputant to deal with their problems" (Spencer 23). Despite this deep and abiding dependence upon mediation in civilization's history, Legal mediation is still a relatively new organized practice of law in the United States, starting sometime in the 1970s and continuing through the 1980s. During this time "proponents of mediation spread their gospel to all civil arenas and even some criminal areas" in their attempt to persuade attorneys, legislators, and court administrators that "mediation was faster, cheaper and more satisfying than court" (27). 

These persuasive voices were eventually heard, for in the space of merely 2 decades, law schools moved from having "barely a course in the entire nation devoted to mediation skills and training" to having "barely a school that didn't offer such training" (27). This training has to the continued growth and development of mediation all across the nation. If you were to Google "local mediators", you would find long lists of qualified individuals who charge for mediation on an hourly basis. Despite this growth of training of mediation that is available, many attorneys still are hesitant to mediate because of our deep-rooted foundation on jurisprudence. This simply means a legal system that is based on looking at past cases to decide future decisions. This isn't to say mediators don't consider past cases; they do. However, strict following of the traditional methods, based in our ancient and modern pasts, is something natural and normal to do.

A Brief History of Law and Communication
Law and case precedence have always been around. Herodotus, the ancient Greek history and contemporary of Socrates, wrote that the Greeks "[were] free ... but not entirely free. For they [had] a master, namely, the Law" (Goldhill 17). Our founding fathers understood the importance of forming governing laws and principles in order for our country to potentially become the world power it is today. Due to the convoluted nature of the legal system, communication and rhetoric are crucial for citizens to understand what the law is, how it functions, the punishments from its violation, and how to protect the rights it guarantees. 

In order for people to be expected to obey these laws, they need to first be informed of them. Over time, the governing rules of ancient societies have been disseminated to citizens through a variety of mediums - stone tablets, ink and parchment, printed books. Today this is most commonly done through the internet on official government websites. Within the United States, the main organization that oversees the interactions of lawyers and people is the American Bar Association (ABA). The ABA gives structure and validity to each attorney so that all citizens can know their interests can be well represented. As the ABA communicates their approval of attorneys, in turn both the attorneys and the judge can communicate themselves clearly in and out the courtroom in order for any matter to be resolved properly. Both attorneys and judges rely wholly on communication and rhetoric, both oral and written, to bring about fair results.

The ABA's Gap: Mediation
Despite the changes and improvements in the implementation of mediation within the legal system, it still remains a large gap in the ABA and in the practice of attorneys across the nation. And even though the ABA has a special membership fee that can be paid to gain access to more resources surrounding legal mediation and dispute resolution, the community of attorneys and other professionals dedicated to alternative dispute resolution (ADR) remained relatively small. In addition, the ABA does offer some minimal resources for the dissemination of mediation across the nation, however, it still remains quite underdeveloped.

Mediation is a mode of dispute resolution as old as time itself, but what we need now is time for attorneys across the nation to realize the tremendous value mediation can and does lend to the resolution of serious issues. When mediation is considered a viable option in the legal system, cases can be and are resolved more quickly, efficiently, and inexpensively. The ABA should take these benefits into account and develop a more comprehensive program for mediation to become a more central part of the legal world.

Works Cited
Goldhill, Simon. The Invention of Prose. Oxford: Published for the Classical Association Oxford UP, 2002. Web.
Spencer, David, and Michael C. Brogan. Mediation Law and Practice. New York: Cambridge UP, 2006. Web.

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