Karen Huber nodded politely when told that mediation–a non-adversarial method of dispute resolution–was the perfect way to handle a divorce. “Perhaps some divorces,” she says, “but it wouldn’t have worked for mine.”
A week later, she not only changed her mind but also began to change her life. The clinical psychologist based in Newport Beach, Calif., joined a growing number of professionals who have made a career out of helping people settle their differences outside a courtroom. Now, she and her partner, attorney John R. Ellingson, help splitting couples divide their assets and settle custody disputes without ever talking to a judge.
For consumers, mediation has a compelling draw, Huber and other industry advocates say. This is especially true in cases of disputes involving someone with whom they’ll have a continuing relationship, such as an employer, spouse, landlord or neighbor. It’s fast and effective. And because the process is cooperative rather than adversarial, the people involved are often able to resolve their differences without lasting acrimony.
Mediation–or “assisted negotiation”–involves lots of communication and lots of compromise but little conflict. The attorneys, educators, social workers or psychologists who serve as mediators say they steer conversations to items of agreement, which allows warring parties to settle one small matter after another until there isn’t anything left to fight about.
That’s critical for parents who share custody of their children, for workers who want to maintain a job after their employment dispute is over and for neighbors or tenants who don’t want to move.
And although mediators often charge hourly rates that are comparable to those of attorneys–from $100 to $450–the process is usually so much quicker than litigation that the average mediation costs less than half of the average court case.
The cost savings for certain disputes can be significant. A contentious divorce and custody battle that might cost more than $100,000 in court is usually settled for a fee of $6,000 to $8,000, says Elizabeth L. Allen, a partner at Coast-to-Coast Mediation Service in Encinitas, Calif., and co-author of “Affordable Justice,” a newly published book on mediation.
Why is it so much cheaper? Litigation can sometimes be like a protracted telephone game, says Nina Meierding, director and senior mediator at the Mediation Center for Family Law in Ventura, Calif. You call your attorney to ask a question or to make a request; your attorney calls the other attorney, who calls his or her client, who responds to the attorney, who responds to your attorney, who responds to you. If you don’t like the response or have another question, the whole process starts again. With mediation, both parties and their representatives– including mediators and sometimes accountants, financial planners, brokers or bankers–all meet in the same room.
Because litigation involves winning and losing–and because nobody likes to lose–attorneys often become dogged advocates of their client’s position, no matter how unreasonable or how unimportant the point, says Meierding, who also teaches mediation courses at Pepperdine University in Malibu, Calif.
“Mediators are very effective at getting people to look toward common goals,” Meierding says. “This is not win-lose; it’s a matter of striking an agreement that is workable for both of you. In court, all bets are off, and you’re fighting for yourself. Here, you’re not.”
How well does it work? Industrywide statistics don’t exist, but a handful of longtime mediators have conducted case studies that show impressive results.
Of the mediations handled at the Mediation Center for Family Law over the last 11 years, 92 percent were settled to the satisfaction of both parties–a requisite in this industry. (When the differing parties cannot come to an agreement through mediation, they can take the dispute to court and have a judge or jury decide the outcome.) And 10 years later, 89 percent of the settlements are still being followed without a hitch, Meierding adds.
About 200 of the 2,420 family courts in the United States offer either voluntary or mandatory mediation in custody disputes–prompted in large part by overcrowding and a rising concern that an adversarial process is not in the best interests of children, says Jessica Pearson, director of the Center for Policy Research in Denver.
The industry has been growing at an annual rate of about 20 percent for the last 15 years, but mediation still accounts for such a small percentage of all dispute resolutions that it doesn’t even show up in industry statistics kept by the American Bar Association, Pearson says.
Mediators say there are only a handful of situations in which mediation doesn’t work. Generally, those include disputes in which one party has markedly more negotiating power than the other or when one party is mentally incapacitated or severely intimidated, such as cases involving domestic violence. In addition, mediation is privately negotiated and does not set legal precedent.
“The one thing that is absolutely required is that both parties want to mediate,” Ellingson says. “You can take someone to court against their will, but you can’t make them mediate.”
