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Attorneys make case for mediation, not litigation

SITKA, ALASKA
Pate said she received mediation training about four years ago, after working for many years in family law. She said many of her colleagues felt that there had to be a better alternative to the courts.

“It’s a winner-loser system. Somebody comes out a winner, somebody comes out a loser. Even if you’re the winner, you’ve usually paid a fair amount to your attorney at the end of the day. A lot of people just don’t feel heard in the system.”

Pate and Bosman described mediation as “alternative dispute resolution.” The main benefit: the parties in a dispute retain control over the outcome. Pate said a court battle can be both lengthy and costly, and most people fail to realize that the final outcome is not really in their hands.

“I usually tell people going to court is like going to Vegas. You’re rolling the dice and a judge is going to make a decision for you. I can tell you what I think might happen based on my experience. I can tell you what the law says. But you are going to have a judge making a decision for you on very important things in your life.”

Unlike a judge, a mediator decides nothing. He or she only helps the parties arrive at a mutually-agreeable outcome.

Bosman used an analogy to stress the importance of this point.

“Let’s say that we have one orange, and Christine and I both want the orange. A typical negotiation might be, Cut the orange in half, Christine takes half, I would take half. In a mediation, what would happen is the mediator would say, Well Christine, why do you want this orange? Christine is going to say, I’m hungry. I want to eat the orange. And he might say, Corrie, why do you want the orange? I’m going to say, Actually I don’t want the orange. I want the orange peel, because I’m trying to make muffins that require an orange rind. So if we split the orange in half, neither one of us is getting what we need from the orange.”

But people who are after the whole orange may not leave mediation feeling they got everything they wanted. Nonetheless, Bosman said that often trust between disputing parties will have been rebuilt, and lines of communication re-opened. She said this was crucial, for example, in child custody cases.

Bosman said that many disputes between businesses could be prevented by better contracts. Even so, she has begun including mediation clauses in business contracts, as a built-in first step toward settling a dispute. Christine Pate said that even if you were contractually bound to try mediation, you only had to give it a good-faith effort before moving on to litigation.

 “Three or four sessions into a mediation, you get a sense of whether it’s going to work or not. And you always have the option to go to court if it doesn’t work. It’s not something you’re going to be doing for a year and then say, Oh – this process didn’t work.”

The two attorneys said mediation costs less than litigation, and was faster. Settlements could be written up in contract form, or filed in court. Mediation is also confidential, whereas court proceedings and court records are open to the public. Bosman said that sometimes, putting a case before the public in the court system outweighed the confidentiality of mediation.

“There are some issues that we want a judicial precedent for: minority rights, women’s rights. There are certain issues that it makes sense to be public, and that we want to go on the record book. So there are times that mediation might not benefit from that perspective.”

Bosman and Pate said many of their mediation cases were referred by the courts. They pointed to not-well-known rules that require the state to provide mediation for child custody and visitation cases where the parties earned less than $100,000. Adult guardianship cases are also assigned to mediators.

Bosman and Pate encouraged Chamber members to consider mediation as an alternative to court in helping to resolve conflict. Pate added that there were also several mediators in Juneau, “In case you’re ever in a dispute with one of us!”
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