Issue link: http://www.e-digitaleditions.com/i/139946
your turn by Michelle O'Connor-Ratcliff and Richard Custin The Mediation Solution IN HIS NOTES for a law lecture, no less a legal mind than Abraham Lincoln advised, "Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser—in fees, expenses, and waste of time." Little has changed since Lincoln's time. Litigation remains a slow, inefficient, expensive, acrimonious, and unpredictable process that airs problems in full public view. Mediation, on the other hand, offers a way to resolve legal disputes effectively, efficiently, and privately—and at a reduced cost. While a few business courses briefly discuss alternative dispute resolution (ADR), which includes mediation and arbitration, it's our experience that most undergraduate business law courses generally pay scant attention to this topic. And we believe mediation is too important in the real world to relegate to a small cameo in the curriculum. It seems the business world agrees. The use of mediation is gaining more acceptance, and many business contracts specify that the contract parties must participate in ADR if there's a disagreement. In fact, in the U.S., Congress and the courts have explicitly endorsed ADR as a favored method of resolving disputes. At times an overburdened court system may impose mandatory ADR before allowing a dispute to proceed in the courtroom. Most business leaders also have a positive view of mediation, whether it's voluntary or mandated. When Cornell Business News surveyed Fortune 1000 corporations, it found that 88 percent had used mediation to resolve commercial disputes in the previous three years, and 79 percent had used arbitration during the same time period. Eighty-one percent considered ADR a more satisfactory process than litigation—90 percent because it was a "critical cost-control technique," 66 percent because it led to "satisfactory settlements," and 59 percent because it could "preserve good relationships." Because mediation is so widely accepted and successfully employed, it only makes sense that business schools should prepare their graduates to use it. But few schools do more than focus on the benefits of mediation: It's faster and cheaper than litigation; it gives parties more control over the resolution than a jury decision; it avoids setting legal precedents; it allows parties to maintain confidentiality; and it is less adversarial, which means it is more likely to preserve an ongoing business relationship. While these are all important points, we believe it's even more essential for students to learn how mediation is achieved in the first place. Mediation is too important in the real world to relegate to a small cameo in the curriculum. 58 July/August 2013 BizEd Mediation in Action We realize it's tough to add new material to overcrowded business curricula, but we think mediation training can fit seamlessly into the lesson plans of the typical business law class. Here are three recommendations: 1. Have students watch an actual mediation. This can be done through a class outing or through a video viewing. Recently students from the University of San Diego School of Business Administration attended a live mediation at the nearby United States District Court. That court has successfully implemented an early neutral evaluation in which a magistrate judge serves as a mediator in civil cases. But we also have shown videos of actual mediation ses-