What is Mediation?
It is a way of resolving issues between parties using a trained third party to facilitate the negotiation. Mediation can be used to resolve many different matters between two or more parties. It is used in a number of disputes, including commercial, contractual, employment, family issues, aging issues, personal injury, construction, workplace matters and community issues.
How is Mediation different from Litigation or Arbitration?
The biggest difference between mediation and litigation/arbitration is the fact the mediation is non-binding. Unlike litigation or arbitration, where the decision of the Judge/Jury/Appellant Court/Arbitrator is binding on you, you are in control of the process. Settlement can only be reached if all parties agree to the settlement.
How much does Mediation cost?
Ms. Griffith charges an hourly fee that is comparable to other attorneys in Gallatin County; however, when compared to the Court system or arbitration, the mediation process generally takes far less time and thus is much more cost-effective. A civil court case filed in Gallatin County District Court can take upwards of two or more years before you will receive a trial. An appeal can take another year. Therefore, you may have to wait three or more years from the date of filing to receive a final decision. A mediation usually takes a business day to finalize. Therefore, the cost in both money and time is far less if the parties reach a settlement.
Is Mediation Confidential?
Generally, yes. According to Montana law, anything discovered in mediation cannot be use against you in Court. For example, Jane Doe was injured in a car wreck. She is in mediation with XYZ Insurance. She believes she is entitled to $500,000.00 for her injuries, but offers to settle for $100,000.00. If this matter does not settle, XYZ Insurance could not bring up the fact that she offered to settle at $100,000.00 at mediation when she asks the jury for $500,000.00. This confidentiality allows the parties to freely explore a variety of different ways to settle a case since all of the ideas stay in mediation. Furthermore, as Montana law stands today, you cannot force your mediator to testify in Court. Also, anything told to the mediator in confidence is kept in confidence by the mediator. The mediator might ask to share the information with the other party if the mediator believes it could help move the matter closer to settlement, but if you do not want to share the information, it will remain confidential.
How likely is it that if an agreement is reached, it will be followed?
Because a mediated agreement is the result of the parties working together to fashion their own resolution, participants have found that follow-through is typically high. However, if one of the parties fails to follow through with the agreement, the agreement is enforceable in Court.
Ms. Griffith provides three distinct types of mediation services that can accommodate any type of issue. They are Collaborative Mediation, Settlement Conference and Blind Mediation. Any one of these services can be a time and money saving alternative to litigation and trial. All types of mediation are confidential.
Collaborative mediation is useful in matters where the parties will continue to have a relationship after they resolve the issue (or issues) at hand. Collaborative mediation can be helpful in a number of situations, including the dissolution of a marriage where children are involved, escalating issues between employees, disagreements between business partners, Owners’ Association issues between two owners or an owner and a Board, probate and/or end of life issues, community issues including differences of opinions between citizen’s groups and government bodies, and many other situations. Collaborative mediation has proven itself to be a cost-effective method of resolving these and other matters. It can be used anytime, even before a case is filed with the Court.
Studies have found that collaborative mediation is effective because collaborative mediation is centered on the parties meeting face to face in a neutral setting with a trained third party mediator who aids in facilitating a discussion and resolving the issues between the parties. Collaborative mediation is focused on problem solving, and may touch on issues inside and outside of litigation. After all, how many times is settlement held up by something that a court case cannot address, for example: hurt feelings, a misunderstanding in the reason a party is taking a position on a matter, or not being able to come up with a satisfactory resolution because of lack of communication? Collaborative mediation focuses on resolving all of these issues and more.
Depending on the circumstances, Ms. Griffith may work with a team of professionals to aid in resolving a matter. Take for example, Dick and Jane. Dick and Jane hire Ms. Griffith to help them with the dissolution of their marriage. Dick and Jane’s children have all left the nest, and Dick and Jane find that they wish to dissolve their marriage. They have substantial assets and would like to divide them equitably, but have no idea how to do that. By using a Financial Specialist along with a Collaborative Mediator, Dick and Jane can outline a number of alternatives that take advantage of our tax system and meet each of their own needs. If they come to an agreement, Ms. Griffith can draft their settlement agreement. Because Ms. Griffith is a licensed attorney, she can also draft the dissolution documents to file with the Court.
Another example would be employees Meg and Tom. Meg and Tom are two key employees for a tech firm. Both are working on a new software product for the firm. However, the project is eternally stalled because if Meg says up, Tom says down. During the Collaborative Mediation, it becomes apparent that Meg has one style of communication, and Tom uses a diametrically opposite type of communication. This leads both parties to avoid communication with the other if possible, or to disagree if they must communicate. In this case, Ms. Griffith would use her training to work with the parties to identify and implement new ways to communicate in the future.
Typically, any resolution reached in a collaborative mediation setting withstands the test of time because the parties have crafted it themselves after listening to each other’s thoughts and ideas. Ms. Griffith received her training in Collaborative Mediation from the Center for Collaborative Solutions in Montana. She not only provides Collaborative Mediation services to the public, but donates her time to the Community Mediation Center and the Gallatin County Justice Court’s “Project Settle,” both of which utilize collaborative mediation.
Settlement Conferences are typically what is thought of when a party mentions mediation. In this form of mediation, the parties are usually in different rooms, and rarely if ever meet. The mediator facilitates by going between the rooms and attempting to find a resolution. The focus of a settlement conference is usually for the parties to avoid litigation and trial, not necessarily to resolve underlying issues and work through those issues to a mutual resolution. Therefore, settlement conferences tend to fit cases where the trial (or appeal) is the last time the parties will relate, or if there are other reasons for the parties not to share a room together. It also can be very useful when there are intense feelings that prohibit communication between the parties. There are many examples of matters which best suit a settlement conference, including when there is past emotional or physical abuse in the relationship between the parties, the matter is a one time business/real estate transaction gone south or when the matter is simply about damages and is covered by insurance.
Unlike a Collaborative Mediation, the mediator may, and usually does, weigh in on the law, and the possible issues each side may have or must overcome if they were to succeed at trial. Each side is encouraged to weigh these issues versus the various settlement offers presented to them by the other side(s). Each party will be asked to draft a mediation memo to give to Ms. Griffith before the settlement conference occurs. She will read each memo, and keep the information confidential unless given permission to disclose it by the author. Ms. Griffith may complete additional legal research into the issues and present her findings for the parties to consider during the settlement conference.
While Settlement Conferences may not resolve underlying issues, they are a valuable way for parties to reach settlement in a variety of cases without the cost of litigation and/or trial. Ms. Griffith has facilitated a number of settlement conferences and would be happy to discuss if this method is right for you.
Blind Mediation is useful when there are multiple parties involved and damages are the sole or main issue in the matter. This technique was developed in construction disputes. In construction cases, the owner may sue the general contractor, the architect and the engineer, who all in turn may bring various subcontractors into the case depending on the alleged damages. Therefore, it is not unusual to find six or seven different parties involved in the settlement conference.
The main issue that most mediators find in these cases is that the parties tend to focus on what other parties are doing, rather than what they believe they can afford, or what they believe their exposure is in the litigation. For example, general contractor Mr. Build might believe that the entire fault lays with the architect, Mr. Draw. Therefore, Mr. Build refuses to offer more than $5,000 until Mr. Draw offers $200,000.00 to the owner. In this case, Mr. Build’s attorney has told the mediator and Mr. Build during their confidential conference that Mr. Build has upwards of $500,000.00 in exposure and will spend $100,000.00 in attorneys fees and costs if the matter goes to trial (Mr. Build forgot to file a lien). Therefore, it is clear to the mediator that personal feelings are holding back a fair settlement. In this case, a mediator may ask the parties to move into a blind mediation.
In a blind mediation, the person harmed only knows what the total offer is for settlement. The person harmed does not know which of the parties offered what amount. The other parties making the offers only know the gap between the total amount offered, and what the person harmed is requesting. For example:
The following offers are made to the harmed party who is the owner of a home:
General Contractor: $200,000.00
Framing Sub: $10,000.00
Concrete Sub: $80,000.00
In this case, the offer to the owner would be $440,000.00 to settle. The owner only knows that the total offer is $440,000.00. She has no idea who offered what. The owner counters at $700,000.00. Therefore, the mediator would tell the five parties that the difference between the collective offer and what the owner will settle for is $260,000.00. The mediator then goes back to each defending party to see if they will raise their offer knowing the gap is $260,000.00. The mediator may use any of the techniques a settlement conference facilitator may use to get to settlement.
In the next round, the following offers are made:
General Contractor: $250,000.00
Framing sub: $30,000.00
Concrete sub: $100,000.00
Therefore, the offer to the owner is $560,000.00. The owner will never know who made what offer until settlement is reached and the amounts are placed in the settlement agreement. The various defendants will not know who made what offers until the same time, or may never know depending on how the settlement is drafted. This type of settlement takes away the blame game and focuses the settlement on practical business decisions.
Schedule an Appointment
If any of the above solutions sound right for your needs, or if you have questions, please contact Ms. Griffith for further information or to schedule a mediation/settlement conference. Ms. Griffith has three conference rooms at her office in Bozeman, one of which can seat approximately 25 people. The mid-sized conference room is wired for video and telephone conference. Furthermore, all parties can log into a cloud service and negotiate and modify settlement documents in real time. Ms. Griffith finds that this prevents misunderstandings regarding the settlement documents that can occur if the settlement documents are not drafted at the conclusion of the conference. Ms. Griffith will also travel to accommodate your needs.
If you are an attorney who has reduced their own fees, Ms. Griffith would be happy to discuss any of the above-mentioned services at a reduced rate. If you are a private person, you can go through Montana Legal Services to qualify for a reduced rate as well. Please contact Ms. Griffith for more information.