In this special edition of our newsletter on Mediation, we caught up with Mr. Bruce Edwards. Bruce A. Edwards, Esq. is one of JAMS founding partners and most experienced attorney mediators.Mr. Edwards has served as a mediator, arbitrator, and special master since 1986. During that time, he has developed extensive expertise in handling complex, multiparty cases with emphasis on construction, engineering and infrastructure, business, employment, and traumatic personal injury matters. Bruce has mediated over 4,500 disputes throughout the United States, Canada, and Mexico on a wide variety of legal issues including construction, engineering and infrastructure, personal injury, healthcare, employment, business, professional malpractice, mass tort, and insurance coverage. Bruce has settled over one-half billion dollars in construction claims since 2001 in California, Nevada, and Washington. Sharda Balaji: Bruce, you believe very strongly that mediation reduces the burden on courts. One of the aim of this special edition of the newsletter is to highlight how Indian courts could perhaps adopt mediation as an effective way to reduce its burden. What in your opinion has kind of helped US Courts to adopt use Mediation? Bruce Edwards: Mediation has effectively reduced the burden on courts in several meaningful ways. First, mediators are often called upon to assist judges in managing the case on its way to mediation, effectively reducing the judges need for oversight and court hearings. Second, most cases settle outside of court. If a case settles early because of mediation, it isn't in the court system for as long as, if it settles on the courthouse steps. Cutting down the typical life cycle of a case by as much as half, has benefits to a court with limited capacity. Third, and most important, mediation in the United States has effectively reduced the number of cases tried before a judge or jury in both State and Federal court. Federal court mediation programs have you been so effective that federal courts have seen substantial reductions in jury trials over the past 10 years. Fourth, as mediation becomes more widely accepted as a dispute resolution approach of first resort, whether through contract provisions or laws favoring its use, lawsuit filings have gone down, further reducing the burden on the court system. Sharda: While Mediation is pretty effective in bringing out an array of solutions that the parties themselves determine, how binding are those “settlement agreements” on the parties and does it require to be formalized before the courts? Bruce: It is important to remember that a mediated settlement agreement becomes binding primarily through the agreement reached between the parties. My experience in over 30 years of settling cases through mediation every week reveals only a handful of times when parties failed to comply with the terms of settlement once agreement was reached. Problems sometimes arise when parties aren’t clear on the specific terms of settlement when they leave the mediation. It is incumbent on the mediator, and is increasingly the standard of practice in the United States, to ensure the parties have a signed agreement setting forth specific understanding between the parties. This practice usually avoids the most common post-mediation concern regarding disputed settlement terms. Increasingly, mediators are directing the parties to put the terms of the settlement on the record before a judge or otherwise formalize their understanding of settlement terms so they can be enforced. In some countries, the mediator will file with the court a document that will enable the judge to enforce settlement terms. In my practice, once a settlement agreement has been memorialized between the parties, I will stay involved through the drafting of final settlement documents and the compliance phase to ensure the parties follow through on their expressed intentions. Sharda: 30 years of extensive experience Bruce. I love the way you distill those learnings and provide it in a capsule form for upcoming mediators, in your training programs. In your opinion, what types of disputes are suited for mediation? Bruce: An overwhelming majority of disputes can be resolved through mediation. Certain types of disputes including those deemed “complex” due to complicated issues of law, multiple parties or the presence of high emotion are especially well-suited for mediation. Recently, certain countries such as Uganda have attempted to implement the mediation process into its criminal justice system. Mediation is used in both reconciliation and sentencing. Interestingly, it is sometimes thought that cases on appeal where parties have either won or lost in the underlying trial court would not be a worthy candidate for mediation. Yet in the United States most appellate courts employ staff and volunteer mediators who routinely mediate cases on appeal, often employing telephone and email mediation techniques given the geographic separation of parties. It's worth noting that the majority of these cases also settle through mediation. The types of cases thought to be poor candidates for mediation include those cases where legal precedent may be required. Sharda: Over the many years that you have seen mediation being effectively used in the United States, what are your thoughts or perhaps top 5 issues on how mediation has been successfully used? Bruce: I think, Mediation has been used successfully in the United States largely because:
- Mediation addresses the needs and interests of the parties in dispute often more directly than could otherwise be obtained in the legal system.
- Mediation allows for creative solutions to complex problems while results available through litigation are often more narrow and constrained.
- Mediation allows the parties to address meaningful settlement discussions on a day of their own choosing and often well in advance of when the court system can make itself available.
- Mediation offers clients the opportunity to maintain control of their disputes and exercise self-determination regarding their resolution, in contrast to historically feeling controlled by lawyers and at the mercy of the court system.
- Mediation often results in satisfactory settlements at a fraction of the cost of litigation.