Peacock Tales • Winter 2017


Avoiding the Courtroom Through Mediation

By:  Douglas R. Nolin

If you are in a lawsuit, you might think that the only way to resolve the case is to let a jury decide who wins and who loses. But there are other ways to resolve legal disputes. Those other ways are typically referred to as Alternative Dispute Resolution, or ADR. One of the most valuable forms of ADR is mediation.

The popularity of mediation for resolving disputes has increased rapidly in recent years. Often, mediation is included in a contract as a mandatory step before litigation. Many court systems, such as federal district court and the Washington County Court of Common Pleas, have their own mediation programs in which litigants are encouraged and sometimes mandated to participate.

The increase in popularity of mediation may stem from the fact that the participants always control the outcome. In mediation, the parties know that the results are completely within their control. Whether the mediation results in a settlement, or fails to do so, is entirely the result of the decisions made by the participants.

This is very different from having a jury decide a case. When a jury decides a case, the jury dictates who wins and loses, who pays and who receives money and how much money is paid. Although the participants in the trial do their best to persuade the jury, the result is ultimately controlled by the jury, and not the litigants. Mediation is just the opposite. In mediation, the participants negotiate toward resolution of the dispute. They do so with the assistance of a neutral mediator who shuttles back and forth between the litigants. The mediator helps the litigants understand the strengths and weaknesses of their claims, and the strengths and weaknesses of their opponent’s position. The mediator will help the litigants negotiate a settlement, but the mediator cannot decide the case. It is up to the participants to decide how far they want to go in the negotiations.

One option in mediation is to quit and walk away, to decide that there will be no settlement. If the participants feel that they have given as much as they can possibly give, or are not getting as much as they should get, they always have the option to end the mediation and walk out. On the other hand, if the participants see progress being made in the negotiations, with the help of the mediator, they can continue to work toward a settlement. But a settlement is never forced on them. It is always their choice whether or not to accept the terms of the deal.

Mediation strategy often differs significantly from the strategy that a litigant will use in a trial. That strategy should be developed before the mediation starts, with the assistance of your legal counsel. And that strategy can change during the mediation, as proposals and counter-proposals are made and considered.

Peacock Keller has attorneys who can assist clients through mediation, and who can develop that strategy and work those negotiations to a successful resolution. Peacock Keller also has attorneys who serve as mediators. By participating in mediation, Peacock Keller is doing its part to foster successful dispute resolution within the courts of Western Pennsylvania.  

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