The Benefits of Mediation
The Benefits of MediationWho Can Mediate?
Anyone can use mediation to settle a dispute they have about any issue. It is frequently used in divorces, custody, child visitation, estate and probate disputes, personal injury claims, medical malpractice and tribal and government disputes. It is important to know that going to trial is not the only option to resolve a dispute and it often leaves parties plagued with anxiety, stress, financial strain and uncertainty. Sometimes, going to trial can damage already fractured family relationships or reputations.
Alternative dispute resolution is a way to avoid these negative aspects of litigation. It allows the parties to have a direct say and control over the settlement reached. It saves the parties time, money and stress and can help repair damaged family relationships.
Mediation Laws
Many states have adopted the Uniform Mediation Act, as South Dakota has adopted. Mediation laws ensure that it is a confidential method for parties to try to resolve issues in a dispute irrespective of whether a lawsuit has been filed. Under SDCL 19-13A-4, the information and communications during mediation are confidential and privileged and these communications cannot be disclosed outside the mediation.
Limited exceptions to the confidentiality laws apply and generally, the mediator cannot be compelled to testify or otherwise disclose anything that occurred during the mediation. Exceptions to confidentiality exist under SDCL 19-13A-6 and include when a threat of violence is made, child abuse, neglect or abandonment is involved, or commission of crimes is disclosed. Subject to these exceptions, confidentiality during mediation ensures the process has a greater chance of success and the parties are not concerned about the information they give during the process being used later in court.
Divorce and Custody
When a divorce is pending for several months and the parties are wondering when it can be finalized or feel frustration at the long, drawn-out process of the court case, mediation is a good approach to finalize it. In some states, courts may also order the parties to attempt, in good faith, to resolve custody disputes. In South Dakota, under SDCL 25-4-56, a court can order the parties to participate in mediation if custody is at issue.
There are limitations to ordering the parties to mediate. These limitations are if domestic abuse or an assault conviction has occurred, or other circumstances make it inappropriate. A judge generally has discretion to determine if mediation is inappropriate to order in a custody dispute.
Using mediation to settle divorce issues can save the parties significant time, stress and money. Also, parties can speak freely about their concerns over asset division, and how they feel about the issues involved, why they want certain outcomes, and how they want to raise their children. This allows the parties to feel heard and understood during the process.
Personal Injury Claims
Mediating automobile accident, premises liability and other insurance claims is an efficient way for parties to end long and protracted litigation. When multiple parties are involved and there is a dispute over causation of injuries, damage calculations, liability or other legal defenses applicable, it is an efficient method to limit the losses to the plaintiff and defendant. It gives each side the opportunity to determine if their internal assessment of the best alternative to a negotiated agreement (BATNA) and their worst alternative to negotiated agreement (WATNA) is accurate or off base.
Also, it helps the lawyers and parties determine areas of their case that require further discovery. It can help to narrow the issues for trial and allow for the parties to analyze aspects they may not have considered. Even if a case does not settle during an initial mediation session, it often times helps the parties reach settlement later and before a trial date.
Tribes and Government
Mediation can be instrumental in narrowing policy gaps between Tribes in the U.S. and government agencies, especially when there is a lack of understanding of the key cultural concepts and traditions that form the basis for the approach of either side. While efficiency and fiscal responsibility drive the decision-making at the government level, these do not carry the same level of priority to many Tribes and the importance of family, culture, language, and protection of the earth take precedence. The differences in beliefs, values, and history of both the U.S. and Tribes are key perspectives to consider when mediating any Tribal and government policy dispute.
Summary and Key FAQ’s
The laws of mediation emphasize confidentiality and ensure safety of the parties, while offering a time and cost saving method to litigation. It not only allows the parties to discuss issues they might not normally raise in a trial, but it allows the parties to learn about areas of strength and vulnerability of their case. Mediation can limit losses and allow parties a direct say in the outcome. It can serve as a method to facilitate understanding of cultural and institutional approaches that drive the decisions by government and Tribes. Contact Stephanie Amiotte at 605.595.7658 or stephanie@amiottelaw.org for more information.
