Mediation Can Help Resolve Disputes

Mediation and other alternative dispute resolution (ADR) tools are increasingly used to resolve disputes rather than resorting to time-consuming and expensive litigation in which outcomes can be difficult or impossible to predict. Courts in the Kansas City area provide excellent examples of the court system helping to divert litigants into mediation for early and efficient resolution of their disputes.  Here are a couple of examples:

• The Seventh Judicial Circuit, Clay County, Missouri, has created an Office of Dispute Resolution Services through which free mediation services are available to litigants in rent and possession cases. See http://www.circuit7.net/landlord/mediation Whenever a pro se tenant (e. not represented by legal counsel) arrives at court, that tenant is invited to participate in mediation with the landlord prior to the court hearing. Mediation allows the landlord and tenant to pursue flexible solutions, such as payment plans for delinquent rent, or orderly move-out arrangements when the tenant needs to vacate. In other instances a landlord may need to address unacceptable conditions in the leased premises. The solutions available through mediation are often much flexible than any remedies a court may have the authority to impose.
• The U.S. Court for the Western District of Missouri has long been an innovator with its Early Assessment Program, now called the Mediation and Assessment Program (MAP). See http://www.mow.uscourts.gov/district/map The MAP system directs litigants into mediation at a very early stage of litigation, typically prior to conducting any document production or depositions, for the parties to explore options for resolving the dispute or narrowing the litigation issues. MAP results in many cases being resolved before the litigants are forced to incur significant litigation costs.

These examples involve disputes that have already progressed to the point of litigation. However, at Krause Law we find mediation to be an effective dispute resolution tool prior to litigation. Here are some examples of how we use these tools:

• When the circumstances are appropriate, we often include dispute resolution clauses in business contracts. These clauses typically provide that arbitration is the exclusive means of resolving any contract disputes, and that an arbitration decision is final and cannot be appealed through litigation in the court system. An arbitration clause is often accompanied by a requirement that the parties must first engage in good faith mediation efforts prior to commencing an arbitration case. Our experience informs us that when a dispute erupts, if the parties will first take time to have a good faith, informed discussion, they can often find their way to a mutually-beneficial solution.
• In highly sensitive situations, such as a potential dispute between business owners, or when the dispute may involve trade secrets or intellectual property assets, the parties often have a very strong interest in having their dispute resolved in a discrete, private manner, outside of the public arena of a court case. The Rules of Professional Conduct (establishing rules for ethical practice by licensed attorneys) have a special rule permitting “common representation” of multiple clients in which the attorney might otherwise be disqualified for a conflict of interest. This rule would, for example, permit an attorney to facilitate negotiations between partners for one partner to buy the other out of the business. When acting under this rule, the attorney is essentially providing mediation services as an intermediary between the two partners.

Sometimes the dispute is too difficult, and the parties too entrenched or too passionate, for their dispute to be resolved through mediation or other ADR tools, and litigation is the only available way to resolve the dispute. However, if the parties can at least agree that it is in their common interest to make an effort to discuss possible solutions to their dispute, then it allows them to retain the power of crafting a practical solution that may be better for both parties than any judgment could produce at the end of litigation.