The Mediation Option

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As a law firm that started during the great depression of the 1930’s, Barna, Guzy & Steffen understands that innovation is the key to success for a law firm.  As the economy places great stress on businesses and individuals, Barna, Guzy & Steffen offers services that are designed to allow legal matters to be addressed in a more efficient and cost effective manner. 

One example is mediation.  Civil matters filed with the courts now must utilize an alternative dispute resolution process prior to going to trial.  Mediation is, by far, the most common form of alternative dispute resolution.  Family law cases strongly encourage mediation prior to a court case. 

Unlike binding arbitration, mediation is not a final decision imposed on the parties.  Mediation is binding only if the parties reach an agreement at the end of the process that they choose to make binding.  While anyone can be a mediator, only individuals with special training are qualified neutrals. Qualified neutrals, also called qualified neutrals under Rule 114 of the Minnesota General Rules of Practice, may act as neutrals in court-referred cases and are subject to their own ethics board.

At Barna, Guzy & Steffen, the qualified neutrals under Rule 114 of the Minnesota General Rules of Practice, are also practicing attorneys.  They utilize the experience in their areas in providing mediation services.  Darrell Jensen is the senior litigator at Barna, Guzy  & Steffen and leads the mediators in the firm that focus on civil litigation matters.  Darrell’s meditations generally occur after a case has been filed with the court but before trial.  Liz Schading is a shareholder in the family law section and has been mediating family matters for the past ten years.  Darrell and Liz offered some insights as mediators into this popular method of resolving disputes.

Mediation has some huge advantages over traditional litigation.  “Mediation is less adversarial and more informal than traditional litigation,” Darrell said.  Liz added that “clients maintain control of this process. In litigation, the lawyers and judge control the process.”  Darrell agreed. “This is the client’s show, not the attorney’s show,” he said.  “A good mediator listens to the clients as much as the attorneys. 

This is much different than the traditional litigation process where the attorney controls all aspects of the case until it is submitted to the judge.” Liz said that “judges ultimately control the outcome in litigation and there often is a winner and a loser.  In mediation, the parties themselves have ownership of the outcome.  The case does not settle unless the parties agree to that settlement.”  There is certainty to any agreed upon resolution.  There is also often a cost savings because it takes the place of a full trial and potential appeals on the matter.

Mediation is most effective when the parties are seeking to resolve the matter. Darrell tells his groups that “everyone should be entering into this process making a good faith effort to resolve the issues and must be open to compromise.” Liz tells her groups “I don’t have the power to make you settle this case, but I will be creative and aggressive in devising an end result that you may be interested in as a solution.”

Mediation is an opportunity to communicate.  “The tendency in litigation is for the parties and the lawyers not to talk to each other unless they are required to,” Darrell said. Mediation is the opportunity for the parties to communicate with each other or have someone do it on their behalf.  While the mediator will find out the parties’ wishes on whether  to initially meet face to face or apart, much if not all of the process occurs with the parties in separate rooms. 

In this case the mediator is moving back and forth, talking separately with the parties.  “Mediators are told things in confidence in these separate rooms that they cannot share with the other party unless the party providing the information authorizes the disclosure.” Darrell said. “This allows the parties to tell the mediator things that they can’t say when the parties are together.” Communicating through the mediator “keeps the personalities out of it, “Darrell said.  He noted that the back and forth shuttle diplomacy in mediation allows the mediator to sort out the irrelevant material when communicating to the other side. Liz notes that the back and forth process also allows the mediator to identify the priorities of each party and to use them in potentially finding a package agreement that addresses the needs of the parties.

The process is also rewarding for the mediators.  “Mediation is an opportunity for creative problem solving,” Liz said. “Walking out of a room with an agreement between the parties is very satisfying.”  Darrell agreed. “The parties know the facts of the matter better than any lawyer or judge on the case, he said. “The most informed decision occurs when the parties make it themselves rather than rely on a judge who must decide the case only on the basis of the controlled facts that are presented in court.”

Faster. Less expensive. Client Controlled. Certainty. Mediation offers many benefits to the legal process. If you are interested in using the mediators in our firm or would like more information about the process of mediation, please contact one of the following Barna, Guzy & Steffen Ltd. Rule 114 Qualified Neutrals:

Darrell A. Jensen

Joan M. Quade

Elizabeth A. Schading

Douglas G. Sauter

Susan E. Tegt

About Scott M. Lepak

Scott Lepak is a Shareholder at BGS and practices in the areas of Labor, Employment and Municipal law. He has been representing employers on labor and employment matters since 1987 including acting as general counsel, chief labor negotiator and lead counsel in arbitrations and litigation. Author of a treatise on the Minnesota Public Employment Labor Relations Act, Scott is a frequent speaker on labor and employment law issues across the state. He also serves as City Attorney for St. Francis and Becker. Scott is an avid fisherman in his spare time.

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