Here’s a Way Out of Going to Court

by Steven Rosenberg

Republished from : Marin Independent Journal

Because of the foresight, innovation and leadership of Marin County’s judges and lawyers, people who use our justice system do not always have to go to court.

They enjoy the benefits of ADR (Alternative Dispute Resolution), now a national trend in which disputes can be resolved not by trial or arbitration but by mediation.

Since July of 1992 as a result of ADR, people have saved vast amounts of time, money and anxiety. Mediation reduces hostility and misunderstanding and thus is an effective and positive alternative for businesses to emotionally and financially debilitating courtroom battles.

Now, again with the Marin County Bar Association’s help, the Marin County Chamber of Commerce has taken the next step in civilizing dispute resolution – by implementing a new business mediation program.

Its goal: to educate people about the benefits and to encourage businesses to resolve disputes through mediation rather than take their cases to court. The program was conceived by Eileen Barker a San Rafael Attorney-Mediator and developed under her leadership by the Marin County Bar Association’s ADR Section in coordination with Les Roth of the County Chamber of Commerce.

Any Marin business can utilize the program, by contacting the Chamber of Commerce at 472-7470. The Chamber will obtain from the other parties their agreement to mediate, appoint a qualified, experienced attorney-mediator, and schedule the mediation. (There is a nominal administrative fee. A three-hour mediation is offered at a flat rate of $300.)

The parties may mediate with or without attorneys. They may speak directly with each other in an informal, productive atmosphere, and develop a mutually satisfactory resolution.

Mediation is a method of Dispute Resolution that is voluntary, private, confidential and cooperative. It is not an adversary proceedings like an arbitration or trial. Rather than focusing on fighting, the parties are encouraged to work toward their common goals of an early, inexpensive and satisfactory resolution.

By state law, communications during mediation are confidential and cannot be used to compromise the parties’ interests at a later court proceeding. Confidentiality works together with the voluntary aspect of mediation to create an atmosphere conducive to the resolution of disputes.

In mediation someone who is impartial – and trained and experienced in dispute management and resolution – helps individuals settle their differences. Unlike arbitration, mediation allows the parties to retain control of the decision making process and the outcome. They are not excluded, as often occurs in litigation or arbitration, but are encouraged to use their subject-matter expertise and negotiating skill to resolve disputes.

By trying to solve problems collaborativly, the parties to a mediation avoid the negative spiral of blame. Instead, they use their time better – creating innovative and durable solutions. A mediated agreement is more likely to be honored than one less customized and forced on the parties by a judge or arbitrator.

In order to mediate the parties, simply need to know enough about the dispute to negotiate intelligently and have a good faith interest in settlement.

For businesses, mediation is quite simple. The process and issues to be discussed are set by the parties themselves; they can be as limited or expanded as suits their needs and interests.Although virtually any dispute can be mediated (divorce, probate, real estate, construction and insurance claims) this program is specifically geared to business disputes related t employment, dissolution (buyouts or mergers), customer/consumer complaints, partnership breakups or disagreements, and disputes with suppliers.