THE VIRGINIAN-PILOT
Copyright (c) 1997, Landmark Communications, Inc.
DATE: Monday, February 17, 1997 TAG: 9702150382
SECTION: BUSINESS PAGE: D1 EDITION: FINAL
SOURCE: BY AKWELI PARKER, STAFF WRITER
LENGTH: 126 lines
Injury? Divorce? Bankruptcy? Slander?
In this country, if you have a legal problem you head to court.
But for a growing number of businesses and individuals with legal gripes, the hassle of filing a case and the months or years to get a resolution may not be worth the cost and the wait.
Take heart, potential litigants, there's another way to get satisfaction.
Fortune 500 companies to dysfunctional families are turning to mediation, a two decades-old, but little-used avenue of settling arguments.
Mediation's appeal: it's cheaper, private, and consumes less time than dealing with judges and juries. It operates on the premise that both parties will settle a dispute - on their own.
``You often get creative resolutions that you don't get in court,'' says John McCammon of the Richmond-based McCammon Mediation Group.
Those having the dispute are active players in deciding how it's resolved. As a result, the parties comply with mediated settlements 85 percent of the time, according to industry statistics.
There is a feeling that ``nobody's sticking it down my throat, I bought into it,'' McCammon says.
Already a mainstream staple of the legal systems in California, Florida and Texas, mediation is still budding in Virginia, says McCammon.
Virginia has been a pioneer in the field, but its relatively efficient court system makes mediation less necessary than in other states, McCammon says. For instance, in Houston's 127th District Court, alternative dispute resolution is partially credited for unclogging court dockets and reducing the average wait for a jury trial from eight years to 18 months.
In Virginia, the wait depends on the court's caseload, but around 18 months is considered the norm.
Among Virginia's mediation pioneers is former U.S. Sen. William Spong - who has worked in Portsmouth for McCammon Group since its founding in 1995. He has mediated such high profile cases as Virginia Electric Power vs. Westinghouse in the late 1970s and the Dalkon Shield class action in 1984.
McCammon's group mediated more than 400 disputes since it began and is in the process of adding mediators.
In 1991, the Virginia Supreme Court formed the Department of Dispute Resolution Services and in 1993 the General Assembly gave courts the authority to order cases into evalution for alternative dispute resolution.
The ADR genre includes mediation, arbitration (where a third party decides the outcome for litigants) and a blend of the two, called med-arb.
There are about 750 state certified mediators in Virginia. They may practice with an agency specializing in alternative dispute resolution or combine it with a traditional practice.
In addition, Virginia has 10 not-for-profit community centers for resolving disputes, including the Dispute Resolution Center on Virginian Drive in Norfolk.
Like legal services, mediation fees vary widely. At the Dispute Resolution Center, the fee is on a sliding scale based on how much a client can pay. A family of four living on $25,000 a year would pay $25 an hour.
Private, profit-oriented mediators might charge $150 an hour or $10,000 a day, depending on the type of case, its complexity and experience level of the mediator.
Oftentimes disputes aren't so much about big pay-offs as about getting respect or making things right, according to Laurie Grohowski, director of the Dispute Settlement Center in Norfolk.
In one case, she says, a woman faced the familiar problem of a contractor who didn't finish remodeling a kitchen when he promised it.
For the woman, the delay meant she couldn't bake her village's traditional holiday cake.
In the woman's homeland, says Grohowski, to show up cakeless means that there's serious family trouble brewing.
``It takes a year to prepare this cake, curing the fruits and what have you,'' Grohowski says.
``Obviously, when the kitchen didn't get together in time, there was no chance to bake this cake.''
Despite the woman's anguish, says Grohowski, ``the last thing either of them wanted was to get involved in any more litigation.''
Their settlement: the builder gave the woman a deep discount on the work.
Sessions take place in the mediator's office and participants must sign a confidentiality agreement not to use anything uncovered in mediation against the other side in court.
One advantage of mediation is that participants aren't bound by the rigid structure of courtroom procedure: no cross-examinations, or rules of evidence.
``You don't have to speak the King's English,'' McCammon says. The overriding concern is to make a deal and let the participants get the issue out of their hair.
And things come out during mediation that wouldn't in the courtroom's staid, conservative atmosphere.
``People want to say how much it hurt,'' says McCammon. The release of emotion is often cathartic for those seeking damages and can engender empathy, if not agreement with the other side. ``We encourage that venting, but you have to manage it,'' McCammon warns. ``You can't let people start throwing chairs (a man did throw a chair once, but it was during a private conversation with his lawyer).''
But even mediation's champions acknowledge that it's not a panacea.
``It's a supplement to, not a replacement for litigation,'' McCammon says.
Mediation is only applicable to civil cases, not criminal.
The agreement in a mediation is a legally binding contract. If it's broken or if the disputants fail reach an agreement, they always have the option of filing suit in court.
In Virginia, mediators are certified after undergoing at least 20 hours of training and helping to mediate at least five cases.
Just because someone has a law degree or wears a black robe doesn't mean he or she is qualified to mediate.
The most common customer criticism is that some mediators can be partial to one side, according to Grohowski, who sits on the Virginia Mediation Network's mediatior review committee.
It's also important for mediators to contain their egos.
That's where a lot of judges, who attempt to mediate in their retirement, falter.
``They're so used to ruling from above,'' explains Gail Grubbs of McCammon Group, that they forget their role is to facilitate, not dictate.
Guy King Tower, a Norfolk attorney and member of the McCammon Group, says the most successful mediators aren't the ones who can shred an opponent's arguments, but those who can get the parties to find common ground.
``The challenge to the mediator is to get the parties to understand,'' Tower says.
Those in the industry concede that it might be a while before the public embraces the phenomenon, but say the sector is growing fast through court and insurance company referrals.
Mediation firms do a brisk business consulting companies on setting up their own internal mediation mechanisms.
``The market is concocting this,'' says McCammon. ``People want to put their fate into their own hands.'' ILLUSTRATION: Color photo
John McCammon
KEYWORDS: MEDIATION