Masonry Magazine November 2002 Page. 45
Mediation
With the significant costs and delays associated with litigation, many claimants are also turning, at least initially, to mediation. Mediation involves the selection of a neutral mediator who briefly reviews the parties' positions and evidence, and then attempts to formulate a compromise solution that the disputing parties can agree to accept. Unlike litigation and arbitration, which tend to pick a "winner or loser," mediation picks an intermediate position between the parties' conflicting positions.
One technique mediators employ is to provide the parties with a candid assessment of the relative strengths and weaknesses of all parties' positions, propose a compromise position reflecting those strengths and weaknesses, and emphasize that recourse to litigation will likely be costly for all, with a delayed outcome that no one can predict or control.
Despite its benefits, mediation also has some drawbacks. The participating parties must be willing to compromise, or at least recognize that their failure to reach a negotiated outcome can well lead to litigation. Indeed, a mediator's proposal is simply that, and is not binding on the parties.
They must all accept and abide by the decision. If they do not, the aggrieved party may be forced to pursue litigation. At a minimum, mediation offers a preliminary, cost-effective means of seeking to resolve a dispute short of more costly litigation or arbitration.
Negotiation
The least expensive resolution method is negotiation, whereby the parties, or their representatives, communicate their positions attempting to persuade the other side of the merits of their case. This approach eliminates use of a neutral third-party, and involves direct dealings between the disputing parties.
The success of negotiation, however, depends greatly upon the skill of the negotiators and again, the willingness of the parties to reasonably assess the strengths and weaknesses of all parties' positions.
Conclusion
Each dispute resolution method should be evaluated for its respective cost, not only in terms of dollars but time commitment for the affected parties. Also, one should consider whether or not the success of their claim depends upon acquiring information from the other side or some third-party (in which case litigation may become preferable). If quick, inexpensive resolution is preferred, then mediation and negotiation should first be considered and explored.
Warren Lutz, Esq, is a Director with the Washington, D.C., law firm of Jackson & Campbell, P.C. He specializes in products liability, toxic torts and construction litigation. He may be reached at wlutz@jackscamp.com.
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