New Yorkers are no strangers to lawsuits. The New York State Unified Court System hears more than 3 million cases per year.
But more and more, people are turning to alternative dispute resolution as a less expensive, less time-consuming, more private option to settle conflicts.
"It's a way of solving disputes without the long, bloody battle," said Lisa T. Sofferin, a partner at Brown & Kelly LLP as well as a Federal Court mediator.
Mediators are trained to look past the emotion and help parties communicate in ways they're not able to on their own.
"We can listen to people in a conflict and hear what lies underneath what they're saying," said Julie Loesch, director of the Center for Resolution and Justice at Child and Family Services. "We can see what's truly important to them and it's often different than what they're saying."
And it can save thousands of dollars in legal fees.
On one end of the dispute resolution spectrum is negotiation, where two or more people work together to come up with a plan, settle a disagreement or set a price. Negotiations can involve a neutral third-party representative, but often don't.
On the other end of the spectrum is litigation -- a good, old-fashioned lawsuit where folks end up in court represented by attorneys and having their fate decided by a judge.
One step left of litigation is arbitration. And one step left from arbitration is mediation. Arbitration and mediation are the two types of alternative dispute resolution you see most in the United States.
>What's the difference?
When two parties are in mediation, a trained and neutral third party helps both sides communicate and negotiate. That third party -- the mediator -- doesn't take sides, doesn't give legal advice, doesn't make any decisions or impose any rulings. Instead, the mediator helps the disputing parties come to a solution on their own by listening and asking probing, pointed questions.
Arbitration is a formal proceeding. A trained and neutral third party (usually three of them) hears evidence from both sides and renders a decision -- in effect, declaring a "winner" and a "loser." It closely resembles court proceedings in litigation. The decision is binding.
With arbitration, however, the disputing parties are able to examine a potential arbitrator's qualification, background and expertise and then choose an arbitrator to preside over the case and make a ruling. With litigation, a judge is simply assigned by the court.
>The cost benefit
One of the great benefits of mediation is the cost savings.
"You're not paying the court reporters, the filing fees, the lawyers' hourly fees," said Sofferin.
The typical mediated divorce in Western New York costs roughly $2,000 -- that is the comprehensive total for both parties, according to Grand Island lawyer and mediator Timothy Mordaunt. Compare that to the average price tag of a litigated divorce, which runs about $4,000 per spouse.
Mediation can cost more or less than the average depending on the complexity of the issues involved, but a divorce will typically cost 75 percent less when working with a mediator.
"Some types of mediation we do at no charge: custody, visitation arrangements, neighbor conflicts," said Loesch.
The most commonly known form of mediation is used by couples going through divorce. But mediation is often the best option for anyone who wants to resolve a dispute while preserving their personal or professional relationship.
Mediation can help settle disputes among parents and children, students and schools, landlords and tenants, roommates, neighbors, creditors, consumers and merchants and business partners as well as many others.
Mediation also can handle agricultural, small claims, commercial, corporate, industrial, real estate, patent, intellectual property, employment, contract, health, medical malpractice, insurance, banking, municipal, trademark, pension, labor, civil rights, environmental, estate planning, tax, tort and product liability disputes as well as many others.
Because parties work together to come to a conclusion on their own -- one that they agree to adhere to and is not enforced by a third party -- the agreements tend to last longer. With alternative dispute resolution, participants often report feeling their issues are dealt with more thoroughly than in litigation.
"They're able to say, 'This is what's bothering me, this is the problem,' " said Sofferin. "They're able to really communicate and find out what's motivating them, which is not always money."
While lawsuits are often settled by ordering monetary awards, parties in mediation have much more freedom to come up with a solution that truly addresses the problem.
"There are all sorts of creative things you can do," said Sofferin.
But even with the deeper involvement, cases tend to wrap up more quickly than they do going through the courts system. Rather than dragging on for years, disputes more typically wrap up in months.
Another advantage of avoiding litigation is that the disputing parties have much more control over their situations.
"A lot of people hear about us for the first time from a judge or an attorney who says, 'Hey, if you're going to continue on in court, a judge is going to decide what happens and someone is going to be unhappy," said Loesch.
Rather than being at the mercy of lawyers and judges who call the shots and often speak in what seems like a foreign language, parties have much more of a say in how things go.
There is no wading through a backlogged court schedule, no imposed ruling. And parties are able to choose a trusted, qualified and suitable mediator rather than being assigned a judge who will hear the case.
Unlike a court case, where every motion filed is a matter of the public record, disputing parties are much more able to maintain privacy.
But mediation is not for every case.
"You have to have two motivated parties who have the desire to get it done," said Sofferin.
Among those who should not consider mediation are:
*Divorcing couples with a history of domestic violence or abuse.
*Parties with any history of fearful, threatening or abusive interactions, such as victims of elder abuse.
*Any party that is more interested in winning than coming to a fair solution.
*People with dementia, severe mental illness or severe cognitive disabilities.
*Anyone with a history of lying, breaking promises or otherwise not playing by the rules.
For more information, contact the New York State Dispute Resolution Association. Visit www.NYSRDA.org or call (518) 687-2240.
Child and Family Services also hosts community dispute resolution centers known as the Center for Resolution and Justice, which provide low-cost or free dispute resolution services. For the Child and Family Services in Erie County, visit www.childfamilybny.org or call 362-2323.
You also can learn more through New York State's Office of Alternative Dispute Resolution and Court Improvement Programs. Visit www.nycourts.gov/ip/adr or call (518) 238-4351.
For a list of Federal Court-approved mediators and their hourly rates, visit http://www.nywd.uscourts.gov/document/Mediator WebList-2011v2.pdf or call 332-1700.