Alternative dispute resolution (ADR) is the process of resolving a dispute between parties outside of a court of law. Dispute resolution may also be referred to as conflict resolution.
There are several different types of ADE that may be used to resolve different types of claims and disputes, including:
- Mediation-arbitration, or med-arb; and
- Other types of resolution processes.
Alternative dispute resolution involves addressing and settling disputes outside of court and its traditional, adversarial atmosphere.
What is Mediation?
Mediation, a form of alternative dispute resolution, is an alternative method to a trial in court that may be used to resolve a legal issue. The traditional legal process of a trial is adversarial.
This means that one of the parties, the plaintiff or the state, files charges against the other party, the defendant, who must then defend themselves. With civil charges, one individual sues another individual.
Mediation is designed to be a different type of process. It is important to note that mediation is not always legally binding.
Individuals still use the process to work together toward a common solution that is legal and acceptable for both parties involved. Mediation is attractive to individuals for a number of reasons, including:
- Hiring a mediator is typically cheaper than hiring a lawyer;
- Mediation is confidential, while court proceedings are public;
- Mediation allows both parties more control over the arguments and the outcome; and
- A mediator provides emotional support for both parties during the mediation process.
When is Mediation Commonly Used?
Family law is one of the most common areas of law where mediation is used. Individuals sometimes have amicable divorces and would like to work out the details together instead of fighting it out in court or letting their lawyers fight their issues out for them.
Divorce mediation is a very common type of mediation. A prenuptial agreement may also be established using mediation.
Other common legal topics where mediation is used include:
- Childcare disputes;
- Custody issues;
- Eldercare disagreements;
- Conflicts between siblings;
- Trusts and estates planning; and
- Parenting plans.
Business law and employment law also find mediation to be a useful legal tool. A labor management issue may be debated in mediation as well as wrongful termination and worker’s compensation cases.
Employees may also use mediation to file grievances and to address discrimination and harassment issues. A disagreement between a landlord and a tenant will often be resolved using mediation.
Builders, contractors, and real estate agents can settle their disputes more amicably using mediation than through traditional civil procedures. Mediation is also useful for business partners who are experiencing disputes or personal injury claims.
Mediation may also be a powerful tool for victims who want to speak more directly with their alleged offenders. If mediation fails, the parties are still able to proceed through the traditional civil process.
How is Mediation Different from Litigation?
A court may order mandatory mediation in a case in a number of ways. This varies widely by the category of law and the particular judge.
Some divorce and child care agreements contain a clause that provides that, in the event of a breach, both parties will be required to go to mediation. In these types of cases, some judges will honor the agreement and order the parties into mediation.
Mediation, however, is typically a choice the parties make on their own in order to avoid court.
What is Victim Mediation?
Victim mediation is a relatively new approach to dispute resolution in criminal cases. This process involves a face-to-face meeting between the victim of the crime and the perpetrator, with a trained professional acting as the mediator between the two parties.
This process helps to personalize the criminal offense and encourages dialogue between the victim and the perpetrator. The parties are also permitted to choose to form an agreement regarding the victim’s compensation.
Victim Mediation is also known by many other titles, including:
- Victim-Offender Mediation (VOM);
- Victim-Offender Mediation Assistance (VOMA);
- Victim-Offender Reconciliation Program (VORP);
- Victim-Offender Dialogue;
- Restorative Mediation; and
- Restorative Justice Dialogue.
These types of mediation programs are often prescribed as a type of alternative sentencing or as part of a pretrial diversion program.
What is the Goal of Victim Mediation?
For a victim of crime, victim mediation allows the individual an opportunity to face the offender, to voice their opinions on the incident, and overcome their emotional trauma. For an offender, victim mediation helps them to realize the consequences of their actions, and provides them with a chance to explain their background and express remorse or apologize.
Both parties are contacted before the process begins and assessed to determine whether victim mediation will be appropriate. In some cases, a crime victim may not be ready or willing to face the offender.
On the other hand, if victim-mediation does occur, studies show great success in terms of reconciliation. Also, victim mediation has been shown to reduce the potential that the offender will repeat the same type of criminal conduct in the future.
What Happens During Victim-Offender Mediation?
In addition to providing a space for communication, victim-offender mediation will often result in a formal agreement between the victim and the offender. The offender may take responsibility for their actions by creating a written restitution agreement with the victim.
A restitution agreement may involve monetary reimbursement and symbolic conduct by the perpetrator. For example, the restitution agreement may address:
- Forming a monetary payment plan or schedule to compensate for the victim’s losses;
- Community service by the offender;
- Letters of apology to the victim and those affected by the offense; and
- Any other actions or promises by the offender that would create a sense of justice for the victim.
Statistics show that there is up to a 90% compliance with agreements formed using victim-offender mediation. This is compared to only about 20-30% offender compliance with court-ordered restitution agreements.
What Role do Lawyers Play in Victim Mediation?
During the victim-offender mediation, the parties are commonly accompanied by family members, community volunteers, and their lawyers. The presence of these additional individuals may help create a more favorable atmosphere for discussion and conflict resolution.
In particular, a lawyer can provide the parties with legal advice or counseling related to the criminal offense. The parties are encouraged to discuss any concerns or questions with their attorneys prior to the mediation.
During the actual mediation, the lawyers can provide assistance, especially with drafting and reviewing the written restitution agreement. Following the meeting, the written restitution agreement may be submitted to a court to be converted into an official formal court order.
This allows the victim to enforce the agreement in a court of law if the terms are violated in the future. The victim’s lawyer can provide the victim with assistance when interacting with the court and in addressing future disputes.
Do I Need a Lawyer for Victim Mediation?
Victim mediation has been shown to be an effective supplement to standard criminal justice procedures. In order for the process to function properly, the parties should be represented individually by their own attorneys.
If you are considering attending a victim mediation, it may be helpful to consult with a criminal lawyer. Your lawyer can assist you throughout the entire process, be present with you during the mediation, and assist with drafting the written restitution agreement.
If you are a criminal offender, it is equally important that you have legal representation during these victim mediations. It is important to ensure that your rights are protected when drafting any type of agreement with the victim in your case.