Vail Valley: Mediation often cheaper, faster than litigation
Vail, CO, Colorado
We often hear about Vail Valley residents using mediation to solve their disputes. But how does it work?
First, a couple of definitions. Negotiation is a process whereby the parties to a dispute attempt on their own to resolve their differences, mano-a-mano, so to speak. Mediation is a similar undertaking with the distinction of a neutral intermediary ” often a retired judge ” who helps facilitate the process.
Arbitration ” another means of alternative dispute resolution (alternative in this case meaning other than court proceedings) ” employs a surrogate judge. While transpiring out of court, the arbiter hears the case and comes to a determination. An arbiter, to use a Bushism, is a “decider.” A mediator is not. A mediator guides the parties in coming to their own resolution by a combination of persuasion, arm twisting, application of the law, experience, and a dollop of plain common sense.
How, then, does a mediation progress?
The first step is agreeing to mediate in the first place. While mediation is often ordered by the court as a prelude to litigation, the parties themselves, absent intervention of the court, may determine that mediation may be worth the effort. Often, mediation is a precondition to litigation under the terms of a contract entered into between the parties which preceded the dispute. It should be noted that mediation is almost always cheaper and faster compared to litigation.
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Once the determination to mediate is made, the next step, logically, is to pick a mediator satisfactory to all parties. In the Glenwood Springs-to-Denver corridor, there are several mediation services staffed with panels of qualified mediators, most of whom are retired judges.
Once a mediator is selected and a date set, a confidential settlement brief, with exhibits, is usually prepared by each party for the mediator’s review. Not only does the brief lay out the facts, issues, and applicable law, but, importantly, it also details what relief each part seeks. In other words, what result does each party hope the results of a successful mediation will produce?
As the name suggests, the “confidential settlement brief” is confidential, and for the mediator’s eyes only. Generally, but not always, each party’s brief is due a week before the mediation.
At the beginning of mediation, the parties often meet together with the mediator who explains how the mediation will progress. He explains, too, that the mediation is confidential, that nothing said or presented at the mediation can be used against a party at trial if the mediation fails, and that the mediator may not be called at trial as a witness.
The usual second step is to divide the parties into separate rooms. Generally, the mediator meets first with the plaintiff and his counsel. After he is confident he understands the plaintiff’s claims, the mediator meets with the defendant or defendants.
Then the process of offer and counter-offer begins, with the mediator engaging in a kind of shuttle diplomacy between the parties, not only carrying the respective offers and counter-offers back and forth, but, also, gently persuading, cajoling, molding, and ultimately coaxing out a solution acceptable to all.
If agreement can be reached ” a process sometimes stretching to 10 or 12 hours ” the terms of the agreement are written up and signed by the parties, their attorneys, and the mediator, at which time the settlement becomes binding. Often, a more detailed agreement is hammered out between the lawyers in the days following the mediation.
Mediation, compared to litigation, is usually much faster, more economic, more informal and often substantially less acrimonious. It is, more times than not, a wise investment before the costs of litigation ” both psychic and financial ” begin to soar.
Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices in the Vail Valley. He may be heard on Wednesday nights at 7 p.m. on KZYR radio (97.7 FM) as host of “Community Focus.” Robbins may be reached at 970-926-4461 or at his e-mail address: firstname.lastname@example.org.