Court-Referred Mediation

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Mediation works. It is a discipline and a profession that is an effective and affordable complement to litigation in a broad range of cases. However, mediation is not and should never be assumed to be a substitute for the judicial system.

The purpose of the judicial system:

  • To uphold the Constitution of the United States
  • To defend and uphold the rights of the citizenry
  • To deliver and enforce justice and offer redress of grievances
  • To make new law through setting new precedents in case law and through the constant refinement and re-interpretation of existing law
  • To balance the power incumbent in the legislative and executive branches of government
  • To balance the power between litigants

The purpose of the mediation process:

  • To open a dialogue between disputing parties
  • To foster mutual understanding and cooperation between disputing parties, with an emphasis on continued and improved relationships
  • To clarify the issues and concerns involved in the dispute
  • To explore avenues for mutual resolution of issues and concerns

Differences Between Mediation and Litigation

Non-adversarial process Adversarial process
Uses dialogue Uses argument
Is informal Is highly formal
Is loosely structured Is highly structured
Seeks mutually-crafted resolution Seeks a verdict
Fosters continuity of relationship Fosters finality in relationship
Works toward mutual understanding and cooperation between parties Works toward legal precedent and reinterpretation of existing law

Choosing the Appropriate Venue

Though there are many other differences between mediation and litigation, these examples suffice to highlight the difference in tone between the two disciplines.

  • Mediation is a collaborative problem-solving process.
  • Litigation is the adversarial prosecution of the law.

Each has value and a specific contribution to make, both to disputants and to our society. Clearly, there are cases appropriate to each venue. For example in the case where a violent crime has been committed, the highly structured and formalized process of litigation, with the goal of a verdict that brings closure and finality to the parties involved, is often the most protective and merciful venue available to both sides. Likewise, without the vigorous and adversarial defense of the accused, justice would not be served.

On the other end of the spectrum, divorce cases seldom benefit from a strictly adversarial prosecution of the law.

When children are involved, there can be no finality in the parental relationship, except in extreme cases where parental rights are terminated in the process of divorce. An alternative approach that emphasizes constructive communication and continued goodwill often makes a greater contribution to the best interests of the children.

Likewise, workplace disputes often benefit from mediation instead of litigation, because the workplace often necessitates a continuing relationship between the parties. A final verdict in court may or may not assist the parties in working together more effectively in the future.

Another determinant to consider when making a choice between the venues of mediation and litigation is the factor of good faith. Mediation is a process of parties negotiating in good faith, with honesty in their communications, and a commitment to abide by any agreements they may make.

Litigation is a venue that protects parties from the exercise of bad faith, through sworn oaths to tell the truth, drastic penalties for perjury, a rigorous process of discovery and investigation of facts, and a disciplined jury to weigh testimony and the presentation of facts.

With these distinctions in mind, it becomes apparent that there are cases that are not appropriate to the venue of mediation. For example, if a prospective party to mediation has not yet made a commitment to enter into the recovery process from drug, alcohol or other forms of chronic abuse of oneself or others, he or she may not be a good candidate for the mediation process. Our courts are designed to enforce good faith. Mediation is designed to foster good faith. So, success in both venues relies in part with an examination of the good faith relationship of the parties.

Comments on Mediation from the Bench

From the Honorable V. Lee Vesely, District Judge, Sixth Judicial District Court, State of New Mexico.

..."I strongly favor the use of mediation in any aspect of the judicial process in which it can be facilitated without violating the rights of the parties to have access to our court system...

..." For the past seven (7) years, I have favored mediation in domestic matters, in the resolution of some juvenile delinquent restoration cases, and now I enthusiastically support mediation in abuse and neglect matters. For a number of years I have found, with the exception of termination of parental rights, the adversarial system of our courts should not be applied in abuse and neglect cases. The adversarial system encourages the polarization of positions. The ever changing environment in which children and families find themselves, is not served well when the parties have become so polarized they cannot change their position and save face at the same time...

..."Other than domestic violence matters, I believe that most of the State is familiar with the successful use of mediation in domestic matters. We have found it extremely beneficial in mediating and settling civil actions throughout our district....

..."As a judge, I find mediation to be an excellent tool for the resolution of conflicts and for solutions that are invested in by the parties who take part in the mediation. I strongly and enthusiastically endorse and encourage judges to look into the use of mediation an adjunct to their court."

To schedule a court-referred mediation, please contact us.