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MEDIATION GAINING LEGAL PRESENCE (Portland, OR) 2000 - Two teens, their fathers and a rash of tempers are about to stride into Marion County Circuit Court. And while law student Crystal Miller-O'Brien is a little anxious about mediating this small claims case, she focuses on her role: to forge a settlement and avoid a showdown before a judge. "This is my thing -- it's what gives me a high," says Miller-O'Brien, a third-year law student at Willamette University. "You can't settle them all. But you want people to feel they tried their best."
"See you in court" is a saying that may be losing its bite as more judges in Oregon -- and across the nation -- push mediation as an alternative to litigation in everything from divorces to civil suits to juvenile criminal cases. The upshot? As mediation and other forms of dispute resolution gain acceptance among lawyers and judges, people are learning they no longer have to duke it out in court.
A University of Oregon School of Law symposium earlier this month brought together academics and lawyers to discuss the booming field of mediation, arbitration and negotiation. "Do (clients) need to have a victory in an appellate court at great expense, or do they need to heal a broken business relationship?" says Lisa Kloppenberg, the UO law professor who organized the event. "In the ordinary civil case, it makes sense to explore other options because our system is slow, expensive and these other options can produce better results."
Oregon is one of 10 states leading the mediation charge in school and neighborhood disputes as well as in the courts, says Joanne Hartman of the Washington D.C.-based National Association for Community Mediation. She points to the state's Oregon Dispute Resolution Commission, which helps fund 26 neighborhood mediation centers -- up from 15 in 1996 -- from Klamath to Clackamas counties.
In family court, state law requires judges to offer mediation services to couples hammering out custody issues. Multnomah County averages about 1,200 custody mediations each year. Also, 15 of 26 court jurisdictions in Oregon have free mediators available for small claims and eviction cases -- up from one court 10 years ago.
Success rates vary, but experts estimate 60 percent to 80 percent of mediations end in settlements. Talking to an agreement In general, mediators help people talk to each other and come to an agreement. "Lawyers talk about resolving a case through payment of money or some other traditional solution," says Howard Carsman, a Portland lawyer and mediator. "But people's needs and disputes go beyond that. People have a need to be heard."
After a mediation session last week at Marion County Circuit Court, Stan Sumpter joked and laughed with the couple his company had sued for unpaid bills. Sumpter said they worked out a payment schedule, cleared up misunderstandings and will skip a trial. "You can talk more freely in here than in a courtroom," said Sumpter, co-owner of Salem-based Merchants Credit Bureau, Inc. "When you're in the same room with the other party, you can see if they really have the willingness, but they may not have the ability" to pay. Other types of dispute resolution include the more traditional settlement conference, as well as arbitration, where parties try their case in a more informal setting.
More criminal court judges are using mediation between juvenile offenders and their victims to work out restitution, says Betsy Coddington, executive director of Resolutions Northwest, which works with Multnomah County. "Nothing about the civil or criminal justice system is designed to heal rifts between people," says Michael Marcus, a Multnomah County Circuit Court judge. "All we do in the litigation system is ritualize combat in a less destructive manner." That attitude is shifting as more law schools offer courses in dispute resolution, and a slew of law graduates enter the profession armed with skills in mediation and arbitration, as well as how to make the best argument at trial.
More courses available: On average, one in four law students have taken at least one dispute resolution course, says Gina Viola Brown of the American Bar Association's dispute resolution section. About 75 percent of law schools approved by the ABA offer three to five courses in dispute resolution. It was the rare law school that offered the classes 15 years ago.
Matt Fitzgerald chose Willamette's College of Law in part because of its dispute resolution program. "In the best interest of your client, you need to know how best to help him resolve his problems, emotionally and financially," he says. The acceptance of mediation gratifies early supporters, such as former U.S. Attorney for Oregon Sid Lezak. He championed mediation because courts were turning too costly and it seemed many arguments could be settled. "People thought I was a kook for trying to do this," says Lezak, a mediator. "What is happening now is that the court system itself is becoming more efficient through the use of mediation."
Still, some lawyers and academics suggest caution. "Mediation is not good for everybody. It can be, especially where you're trying to preserve a relationship. But if you're in a mere monetary dispute, then mediation may be less satisfactory," said Ed Brunet, a professor at the Northwestern School of Law at Lewis & Clark College and a mediator.
Mediation may not be appropriate for hefty lawsuits that involve constitutional rights or discrimination charges, Brunet says. Judges should probably rule on such cases in a public trial. Likewise, Portland plaintiff's attorney Elden Rosenthal has no problems using mediation between neighbors quarreling over a barking dog, or in small claims. But he worries when mediation creeps into the heavy-hitting cases he argues on behalf of clients who have lost limbs, been fired, or have been wrongfully imprisoned. "It's nuts all this mediation -- it's a step backward in the world of litigation," he says. "Ten years ago, way over 90 percent of my cases settled, and they settled without mediators, and they settled because the lawyers got together. . . . Now what happens is we go to mediation, and the mediator plays shuttle diplomacy, so I think it's a breakdown in professionalism."
Law student Miller-O'Brien says the skills she's learned mediating will prove invaluable when she turns to litigation. What's most important in a mediation is that the parties trust her and the process. "Other than that, you have to go with it. It's kind of like a play -- you don't know how the drama's going to play out."
You can reach Janie Har at 503-221-8569 or by e-mail at janiehar@news.oregonian.com.
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