Mediation: Attempting to Resolve Your Conflicts Through Compromise
Mediation Has Become the New Standard for Litigation In Vermont
Unique perspective on mediation from a retired judge in Vermont who believes that legal cases should always have some mediation
“Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser—in fees, expenses, and waste of time. As a peacemaker, the lawyer has a superior opportunity of being a good man. There will still be business enough.”
Mediation, Past, and Present
When I first began practicing law in the early 1980s, mediation was rarely even mentioned as a method for resolving lawsuits. While lawyers would routinely make efforts to amicably resolve cases with opposing counsel, this was often a result of informal and somewhat sporadic conversations that usually began with “Is there a way we can settle this case?” There was little to no court oversight of mediation, much less any systematic effort by the courts to ensure that parties at least attempted to resolve their dispute in good faith prior to trial.
Fast forward to 2021, nearly forty years later. Today, in the civil division of the Vermont court system and in the vast majority of all Federal court cases, participation in mediation is mandatory before your lawsuit will even be scheduled for trial. In the Vermont Family Division, judges are allowed to refer divorcing spouses to mediation, even if one spouse doesn’t want to mediate. And in cases where parties agree to share legal decision-making for their minor children, they must have written into their agreement a dispute resolution process which they commit to (usually using mediation) before they bring their disputes back to court. In short, you cannot conceive of being involved in a lawsuit today without at least some consideration of participating in mediation
Mediation During a Pandemic
Mediation still continues to take place in Vermont during the pandemic. I have participated in Zoom mediations both as an attorney as well as a mediator and, since COVID began, I have also participated as a mediator in person with parties involved in litigation. That, in itself, demonstrates how fundamentally important mediation is as part of the court process. Whether it is COVID-19 or another kind of pandemic, mediation is such a critical component to the modern legal process, that it has become a prerequisite rather than an option. Although pandemics will come and go, it is quite telling that the mediation process in Vermont has stayed strong throughout, indicating that its future importance in the legal process will continue to become even stronger.
Two Types Of Cases That Go Through Mediation
There are two basic types of cases that go through mediation: a civil lawsuit, where the dispute may concern a personal injury or perhaps a breach of contract, and a divorce case, where separating couples are unable to agree to valuation and/or distribution of property or are unable to agree on a parenting plan for their children. These two different types of cases, civil versus family, result in qualitatively different mediation processes.
Civil Mediation
Not specific to Vermont and generally speaking, when opposite parties are engaged in a civil lawsuit, the core issues may include what monies are demanded by the plaintiff and what practical outcomes are being sought by that party (including reinstatement if someone has been fired, a correction to their performance record, or, in a boundary dispute for example, the clarification of a property line.) A mediator will focus on all of the issues at hand but, crucially, will endeavor to learn and understand the most important issues at the core of the dispute for both parties. For it is these resolutions that will likely lead to the resolution of the entire case. Sometimes, a party just wants to know that their voice has been heard, that their grievance has been aired, and that their point of view has been respected.
In the vast majority of civil cases, the resolution can be achieved by the parties compromising on the payment of money damages from one side to the other. Mediation in civil cases can assist parties in realizing the relative strengths and weaknesses of their claims and defenses, in a nonthreatening environment. Mediation gives the parties the opportunity to assess their case in a realistic and confidential setting, which goes a long way towards achieving a satisfactory resolution prior to the pressure (and expense) of a court or jury trial.
Family Mediation
In my experience, the mediation of family disputes can be far more complicated than the mediation of civil disputes. While mediation in both types of cases requires the mediator to respectfully listen to each parties’ positions and to promote an environment where settlement is seen as the best available option, family cases can be factually more complicated than a civil lawsuit. This is due to the fact that each family presents a unique and complex constellation of circumstances to the mediation. Moreover, the pervasive emotional difficulties which arise at the end of nearly every marriage creates a significant barrier to resolving family disputes. The sheer number of potential differences between the parties, coupled with the depth of emotion present in family cases, results in a qualitatively different process than mediation of a civil lawsuit.
In order for family mediation to be successful, the mediator must carefully listen to each parties’ positions, understand why that position is important to that parent (and why the other parent disagrees with it), and assist both parties in realizing that continuing their entrenched positions will only result in further uncertainty and expense. Finding compromise will permit them to create their own unique solutions for their family’s issues and ensure that they keep control of their family’s future, rather than giving that control to a judge.
Finally, in both civil and family cases, a good mediator must be able to impress upon the parties that creating their own solution to their dispute is a vastly preferable outcome than having one imposed upon them by a stranger – whether that stranger is the judge or the jury.
