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TETRAULT LAW, P.A. Calls returned promptly! Albert R. Tetrault, Esq. P. O. Box 350476 Palm Coast, FL 32135 Work/Cell: 904-377-5585 Home: 386-446-0316 e-mail: tetraultlaw@cfl.rr.com www.tetraultlaw.com

WHEN TO USE MEDIATION She was a respected woman in the community. Always friendly and cheerful, Elizabeth’s husband said that she “never met a stranger.” Her death was unexpected. Although she was seriously overweight, no one noticed the symptoms of imminent heart failure. She would struggle with breathing during a brisk walk, but friends thought this to be because of her size. One bright spring morning, while walking to a neighbor’s house, she succumbed to a heart attack and died. The Walton Funeral Home directed a beautiful funeral service. As the leading funeral home in the community, the Walton family treasured its reputation for high quality and memorable services. From the viewing to the graveside service, everything was flawless. As the family was leaving the cemetery, the attendants began to lower the casket into the ground. Suddenly, one of the workers lowering the casket shouted: “Look out!” The accident caused the casket to fall from its harness and the casket opened, spilling Elizabeth to the bottom of the grave – outside the casket. The family turned, and saw the scene. Elizabeth’s family gasped in unison. The attorneys met before filing the lawsuit. Both agreed that this would be a sensational civil trial. The Walton family, recognizing the situation, wanted to avoid litigation. Regardless of the outcome, Walton Funeral Home would receive everlasting and notoriously permanent damage to their professional and quality image.

© TETRAULT LAW, P.A. July 2011


Mediation Mediation is an alternative to traditional civil litigation. Attorneys know why mediation is an appropriate alternative. Mediation is quicker and cheaper than litigation. Mediation is the last opportunity for the parties to create their own resolution of the dispute. Mediation is less formal and more comfortable for the parties. Nevertheless, the parties seldom explore mediation as an alternative in the early stages of possible litigation. Mediation, and any negotiation, is an unnatural act. Conflict resolution through negotiation among humans has a strong and negative biological bias. Historically, humans “stepping outside” and fighting each other, sometimes to the death, has resolved the conflict. Until recently in our history, dueling was a common way to resolve personal conflicts. The highest manifestation of this kind of conflict resolution is war. With the evolution of our cultures, we have seen that conflicts can be resolved by submitting disputes to legal authorities. Religious hierarchy played this role in earlier civilizations, where government and religion merged. In recent times, the separation of religion and government has led to the development of secular judgment through the judiciary, or the “rule of law.” Although there has been migration toward less barbaric methods of settling disputes, the secular judiciary still relies on people independent of the parties in conflict to determine a “winner” and a “loser.” These independent parties may be arbitrators, judges, or juries. When to use mediation The Walton family is distressed over the events of that fateful day in the cemetery. Neither party wants to explore in a public forum the issues of emotional distress of Elizabeth’s family. The Walton family wants to avoid the negative publicity a civil trial would have on its reputation. Yet, the Walton family disputes the claim for damages suffered by Elizabeth’s family. This situation cries out for resolution through mediation. Mediation can bring closure to the event, compensation for damages, and confidentiality to protect the reputation of Walton Funeral Homes.

© TETRAULT LAW, P.A. July 2011


Many scenarios can be resolved through mediation as a preferred alternative to litigation. If the parties can overcome the biological need to get “justice” when they have suffered, mediation is an excellent process for dispute resolution. • Parties control the outcome. Self-determination is perhaps the single biggest reason to employ mediation rather than litigation. In mediation, the parties themselves determine the outcome. In every other form of dispute resolution, one or more strangers will evaluate the dispute and render judgment and damages to the prevailing party. So, if parties want to maintain control, mediation is the answer. • Preserve confidentiality. Litigation becomes part of the public record. All the documents and evidence become available to reporters, neighbors, employers and all curious persons. With search capabilities on the Internet, the conflict becomes public knowledge once the parties initiate litigation. With mediation, the parties can demand confidentiality as a condition of the settlement. • Preserve relationships. Frequently a dispute develops between two parties who have had, and want to continue to have, an ongoing relationship. This happens in both business and family situations. Two businesses may have a dispute over a specific transaction, but have a long-standing relationship that they want to continue. In a custody dispute between divorcing parents, the parties usually want to have a respectful, if not friendly relationship after the conflict resolution. Mediation limits the possibility of increasing the level of hostility as the attorney for each party prepares the strongest arguments to win the case. It is far easier to renew or repair the relationship following a successful mediation than following a litigated outcome. Court Ordered Mediation With the stress imposed on the judicial system by limited budgets, judges often require mediation. In Florida, all foreclosure cases must be mediated. The Residential Mortgage Foreclosure Mediation Program in Florida is a formalized process to insure that the parties have the opportunity to negotiate a mediated settlement before litigation proceeds into the courts. Similarly, all personal injury litigation in Florida must be mediated prior to coming before the court. Court ordered mediations often result in agreements, providing relief to the parties in time, cost, and emotion while reducing stress on the judicial system.

© TETRAULT LAW, P.A. July 2011


Strategic Mediation Lawyers sometimes use mediation as part of their litigation strategy. By preparing for mediation, and actually experiencing the process of negotiation before an unbiased mediator, lawyers can expand their understanding of the legal arguments and their opponent’s trial strategy. They will also appreciate what evidence must be discovered to succeed in court. This knowledge, and the challenge of acquiring this evidence, may lead to a settlement in the mediation! Perhaps the most compelling reason to use mediation is economic. When the economic cost of litigation is significantly less than the potential reward from a successful litigation, a plaintiff will want to pursue litigation. If the likely outcome of a case is predictable with a high degree of certainty, the parties will usually negotiate a settlement. Less clear is the situation where the probability of winning or losing in court is suspect. This is the kind of situation where mediation will benefit both parties. Self-determination of the parties, through mediation, can reduce the cost, stress and uncertainty of litigation. Summary When Elizabeth’s family came to mediation with Walton Funeral Home, they were far apart in their view of the damages suffered by the family. Walton was confident that they were not liable for any negligence, and that the cemetery and workers were the negligent parties. Because Walton did not want the visibility of this event to become public, Walton successfully mediated the case and paid significantly less than the claim demanded by Elizabeth’s family. Both parties left the mediation somewhat unsettled, but happy to have this conflict resolved. Mediation is a fast growing segment of the law. The “why” of mediation relates to selfdetermination, time and cost. Parties determine the outcome in mediation. It is less expensive than litigation. Mediation is quicker than litigation. Preparation for mediation takes less time and is less expensive than litigation. Mediation is less formal than traditional court processes. There are many opportunities for mediation, and they should be examined carefully before pursuing conflict resolution through the judicial system. Albert R. Tetrault Attorney & Mediation Counsel July 24, 2011

© TETRAULT LAW, P.A. July 2011


When to Use Mediation  

Overview of Mediation as an alternative to litigation. Background of mediation and example of usefulness.

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