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State Declares Mediation Day – What in the world is it?

In a news story out today, the Montgomery Advertiser reports on the State of Alabama’s new push to resolve court disputes through mediation.  The Alabama State Bar has declared next week “mediation week,” and the Governor has declared next Friday “Mediation Day.”

Many years ago, the Alabama Legislature adopted several laws creating a mediation program in Alabama.  Nowadays, just about everyone of our cases goes through the process of mediation, either by court order or by the parties voluntarily agreeing to go through the process.  When I tell our clients that we are going to participate in mediation, I always get some puzzled looks.  Most folks simply don’t know what it is, so let me explain, or at least sum it up.

Mediation is nothing more than an informal attempt to resolve your dispute either without a trial or without filing a formal lawsuit.  It can be done before or after a lawsuit is filed.  It can even be used in criminal cases.  In the mediation process, the court can appoint a mediator, or the parties can agree on a mediator.  The mediator is a third-party who is neutral and has no connection to the case.  His or her only job is to attempt to have the parties resolve their differences without a trial or a claim being filed.  Many mediators go through special training.  Some are former judges.  Every one I have ever worked with is an attorney, although I have heard of some non-lawyers conducting mediation.  There are also Christian mediation services for believers to submit their disputes to a bible-based process.  Mediation is confidential.  Nothing said, offered, or rejected in mediation can be used in trial or for any other reason.

According to most statistics I have seen, about 85% of civil cases resolve before trial through the mediation process.  That’s good and bad.  Mediation can be good because it allows the parties to reach certainty about the outcome of the case.  If you are injured and settle your case at mediation, you will usually have your compensation within just a few weeks.  A trial, on the other hand, could be serveral months, if not years, away, and then the defendant could appeal.  The reason a mediation could be bad is that you lose your ability to have your day in court.  My partners and I are trial lawyers.  We love to try cases.  Some cases need to be tried.  When you resolve your dispute by mediation, you won’t get a trial.  Also, there is a reason that the other name for a settlement is a “compromise.”  A compromise means that both sides give up something they want in order to resolve their differences.  Sometimes, the compromises are too much and the case has to go to trial.

The news story says that mediation week/day is being declared to reduce the workload on the courts because the court system is overwhelmed due to a lack of funding by the legislature.  To which I say, fund the court system!  Absent that, they should examine the court statistics and find out which kinds of cases are creating a drag on the court system.  According to most stats I have read, the majority of civil cases are filed by businesses, as opposed to personal injury victims.  In fact, those same stats say that personal injury filings are way down over the last two decades.  Maybe an analysis of the business cases will help reduce the drain on the court system.

All that being said, any program that furthers amicable resolution of disputes is a good one, and I applaud the Bar and the Governor for taking these steps.  Let’s hope mediation week and day continues the past success of Alabama’s mediation program.

Edwin Lamberth

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