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Mediation— A Great Option with Lower Fees and more Satisfaction for Clients

Janet M. Nesse


When mediation works, which it often does, it can be a great solution for our clients. I like to tell the story of two housemates who know there is one orange in the refrigerator and they both want it.  Each sneaks down to the kitchen in the middle of the night, they scare each other to death, have a big fight over the orange in which they smash it to bits, and no one gets anything.  How could mediation have helped?  Lawyers and other linear thinkers will say “oh they could have discussed it and each taken half”, but it is far better than that.  One wanted it for juice (perhaps to help a hangover, thereby explaining the desperation) and the other wanted the peel for baking (or perhaps making adult beverages).  A mediator could have found all of this out and they would each in effect have gotten a WHOLE orange.

The goal of mediation is to create a situation in which the parties reach their own solutions and have the chance to have their needs and wishes met. The mediator helps them to reach their personal goals. Many disputes involve far more than simple binary questions of who gets more money.  Business breakups and divorces often involve hurt feelings, as well as a division of assets.  In a divorce, maybe a property needs to be sold because the couple built a house together and neither can bear the idea of the other party living in it.  Perhaps a child custody issue can be resolved by realizing that Christmas is incredible and traditional for one side of the family, and the other side would really prefer Thanksgiving. These feelings can be shared in separated meetings as part of a mediation where the entrenched parties and their battling attorneys are not taking the lead in discussions.

In a business, sometimes parties get stuck on a particular number of dollars when, in fact, one party would prefer to have cash over time which will enable them to retire and will allow the other party to continue in the business without undue stress.

The process is especially effective in cases with more than two parties in which working together can maximize results for all.  Examples of this are environmental cases, cases with multiple insurers or multiple defendants, or even with multiple plaintiffs who are trying to share a finite amount of resources.

The process is totally different from a Court case, in which a Judge or Jury simply gives you the answer to a legal or factual question without any true insight into the goals of the parties.  It is definitely not like arbitration where you get an individual (or three) who is not a judge, making similar decisions for your client.  You have to pay them substantial funds on an hourly basis for the privilege of having them make this decision, which cannot really be appealed.  Mediation is about focusing on goals, not just legal or factual positions.  When the process is allowed to play out, the parties can try to express and attain their aims, looking forward, and not just backwards.

Janet Nesse is a mediator for the United States District Court for the District of Columbia and the United States Bankruptcy Courts for Maryland and the District of Columbia.  In addition to taking a multi-day general certification training, she has participated in workshops and seminars that focus on both domestic relations mediation and mediation for bankruptcy matters.  She can be contacted at [email protected]