Conflict with other people is difficult to avoid, no matter one's own personality or life circumstance. Issues can run the gamut from complaints over products or services to property line disputes. Such conflicts can be expensive to resolve in courts of law. Attorneys can cost hundreds of dollars an hour, and a single civil lawsuit can take years to work its way through the court system. This is particularly true if the case goes all the way to trial, or if the disappointed side files an appeal. Is there a better way to resolve your dispute?
A mediation is essentially a facilitated negotiation. A third-party neutral mediator, who is trained in conflict resolution methods, sits with you and the person you're having the disagreement with and helps you both to talk things through. The mediator does not "take sides" or make a decision, like a judge or an arbitrator. Rather, he or she works to find the root of the conflict and consider potential options.
While litigation accentuates differences between the parties, mediation works to bring the parties together. Often, disputing parties can emerge from a mediation closer than ever more. This is particularly useful in situations where you will both need to deal with one another repeatedly, often for a long period of time, such as with neighbors.
The costs of mediation work quite differently from the costs of litigation. In litigation, both sides would normally hire their own attorneys. Most attorneys charge by the hour, meaning that the longer the legal dispute takes, the more you pay in fees.
In mediation, it is not required that you and the other party hire separate attorneys. Indeed, it's often more efficient if it is just three of you around the table: you, the other party, and the neutral mediator. Having attorneys sitting beside you or speaking for you in a mediation can sometimes inhibit compromise. (After all, attorneys have a natural inclination to promote their own client’s rights, sometimes at the expense of reasonable compromise.)
How much does mediation cost? It depends. There are two primary types of mediation services:
We will discuss each below.
Often, you can find free (or at least low cost) mediation services. If you live in a large city, chances are you can find low-cost or no-cost mediation services provided by local courts, bar associations or not-for-profits. State and local governments actually give funding to these organizations because judges and legislators would rather see disputes resolved outside of court when possible.
As a result, many of these nonprofits have rosters of mediators (sometimes called “neutrals”) who are experienced attorneys or retired judges. Some have backgrounds in community organizing, social work, or psychology.
Examples of organizations that provide free mediation services include the New York Peace Institute in New York, the Center for Conflict Resolution in Chicago, and the Centre for Mediation and Dispute Resolution in Boston.
Law schools are another venue to consider. Some have mediation “clinics,” in which law professors and students work together to resolve conflicts for free.
Four of the most well-regarded mediation clinics are (including contact information for the clinic directors) are: (1) Cardozo Law School’s Mediation Clinic in New York, (2) Harvard Law School’s Negotiation and Mediation Clinical Program in Boston, (3) the University of Pennsylvania’s Mediation Clinic in Philadelphia, and (4) Pepperdine Law School’s Mediation Clinic in Malibu.
One advantage of contacting a law school’s mediation clinic is that it may be willing to give a great deal of time to your case. Part of the goal is to help train students by showing them a real-life legal conflict. As a result, leading law professors with a great deal of conflict-resolution experience could be at your disposal for long sessions. Hiring such a person privately might be prohibitively expensive.
Not all cities offer access to these free services, unfortunately. And sometimes, “free” isn’t always the way to go. Your dispute might be unusually complicated, and some nonprofits are willing to give only a certain number of hours of mediation time for free.
Your dispute might also center on a substantive area of law or fact requiring significant expertise. An example would be a dispute over construction, where your neighbor’s contractor is damaging your home in the manner in which he is drilling into the ground. Here, it might be helpful to have a mediator who has legal experience with construction law and is familiar with the particular local statutes on drilling, case law for negligent engineering, and range of damages available. Such mediators might cost several hundred dollars per hour, depending on your jurisdiction and their level of experience.
So, while you might end up paying a few hundred dollars an hour for a day of the mediator's time, these costs don't seem so bad when compared to the costs of paying a lawyer that same amount over the course of many months.
Suppose you approach bring up the idea of going to a paid mediator to resolve your dispute with someone. That person agrees to sit through a mediation, but refuses to pay anything. Obviously, this could place a large financial burden on you; remember that mediators will likely charge for the time involved in:
These hours add up. There is also a sense of unfairness; mediation is about both parties participating equally in the process, and there’s something to be said for both having “skin in the game.”
What should you do? Try subtly reminding the other person of what lawyers refer to as the BATNA—the best alternative to a negotiated agreement. If you’re hiring a mediator, chances are the dispute is significant enough that it could go to court. This means that the other party would ultimately need to spend money one way or another, either to hire a mediator now, or to hire a lawyer later on. Remind him or her that a mediator is often less expensive than a private attorney, and if the dispute can be resolved in just a few hours or days, the expenses would surely be lower than during a protracted court battle.
If the person with whom you're in conflict still does not consent to paying the cost of the mediator, you might have no choice but to hire a lawyer. Your lawyer can send a letter to your adversary, which might frighten him or her into paying a fair share.
If this still does not work, your lawyer can file a complaint (that is, begin litigation). This will essentially force the person to begin spending money hiring an attorney. From that point, the two attorneys might be able to request that the judge order mediation, which judges will sometimes do when they believe that a case can be settled without the time and expense of a trial.