Mediate Criminal Cases? A Georgia Budget Solution?

On March 19, 2010, the revered Emmet Bondurant addressed the Litigation Section of the Atlanta Bar Association. During his presentation, he made an appeal to attendees to do pro bono work, but with a caveat: do not do indigent criminal defense work on a pro bono basis that otherwise should be done by the State (and at the urging of Sonny Perdue who claims that the State cannot afford to pay for the defense of the indigent). This call to aid those in need, but not everyone in need, does have its logic.

Mr. Bondurant's call to serve, but with a caveat, is in line with other esteemed minds in the legal community. Not long ago, for example, Leah Sears indicated that certain budget cuts to courts could be unconstitutional. So too, Mr. Bondurant's rally not to do indigent defense work on a pro bono basis also has a constitutional basis. Mr. Bondurant explained that to do this work pro bono would, in effect, relieve the State of its constitutional obligation to defend the indigent and enable it to avoid its constitutional responsibilities when budgets are tight. Thus, to borrow from psychology, to defend the indigent at the Governor's behest enables unconstitutional behavior.


In such a stand-off, unfortunately, it is the poor that have the most to lose.

Might there be another alternative that both sides could support? It could be greater mediation of criminal matters. The American Bar Association has proposed such measures and assisted with the implementation of such mediation programs in other states. Could it work in Georgia, too? Would mediation assist the State in meeting its constitutional obligations while making its budget? Perhaps.

Jack Hanna, a mediator and member of the American Bar Association, has written about the ABA's involvement in mediation of criminal matters and the success of such programs in Minnesota, among other jurisdictions. Mr. Hanna's article on ADR in the criminal arena, "Mediation Works In Criminal Matters," can be found by clicking here. Maybe it is time for Georgia to check out its alternatives.

Mediation and Confidentiality

by Jennifer Keaton

Confidentiality in mediation can be a tricky subject. If, in the mediation, liability is admitted or a particularly bad fact is disclosed - can it be used at trial? Or, can an incriminating statement made in mediation be used to impeach a witness/party during a late deposition?

Arguably, such "free speech" at a mediation can be prevented from being admitted into evidence through a variety of objections, motions in limine, etc. The admissibility of such statements also may be subject to varying State laws. However, it may be better (and cheaper) for attorneys to prepare clients to avoid this legal scenario altogether. But, avoiding major admissions at mediation may also be important for a psychological reason.

If major admissions are made in mediation, then the admission should be made with tactical precision. To do otherwise may result in the opposing party becoming more entrenched in the battle, not the negotiation. The motivation of the opposition can be altered with major disclosures in its favor - shifting from a spirit of resolution back to a continued pursuit of the jugular.

But, some might question whether parties should enter the mediation process with the intent to withhold information that would assist in all parties' assessment of their positions. If parties participate in mediation with the premediated intent not to disclose information, have those parties undermined the process of mediation itself?

Weigh in.

Mediation: Step-By-Step

by Jennifer Keaton

Step 1: What to Expect
Prior to most mediation sessions, the neutral may hold a telephone conference with each party. This call is an opportunity for the neutral to give the party an overview of the process and to receive a brief summary of the dispute. Dates, times and location of the mediation will be confirmed. It is part of preparation for the session.

Step 2: How to Prepare
Before the session, parties should evaluate the strengths and weaknesses of their cases. Consideration should be given to providing information unknown to the other side beforehand or at the session if it would impact the other side's own assessment of the case. Logistically, parties should clear their schedules to minimize distractions to the session.

Step 3: Joint Sessions and Caucuses
Usually the parties begin mediation together in a joint session led by the mediator. After an introduction by the mediator, each party often provides an opening statement about the dispute. Frequently, mediators then will move parties into separate rooms, and the mediator will "caucus" with each party. These caucuses facilitate the flow of information and offers between the parties to facilitate agreement.

Step 4: If Resolution Is Reached
If an agreement is reached, a document will be drafted that captures the facets of it prior to the parties' departure from the mediation session. When parties have legal counsel, this document may include an agreement for the attorneys to prepare a more formal document that incorporates the mediation document.

The Value of ADR - Alternative Dispute Resolution

by Jennifer Keaton

The value of alternative dispute resolution is in the opportunity. Resolving a legal dispute outside of courts has many benefits, such as exercising some control over the outcome. Additionally, ADR also provides the parties the opportunity to control when the matter resolves, which may occur faster than waiting for a trial or a ruling on apppeal. One Mediation neutrals can assist you with maximizing these
opportunities.

One Mediation neutrals are qualified professionals whose rates are reasonable. After
neutrals confirm that they have no conflict with respect to the parties in a mediation, the scheduling the session is confirmed and can be done online. One Mediation provides online payment options for unrepresented parties. Additionally, One Mediation neutrals are available for certain matters on Saturdays. Meet our neutrals by clicking here.

Mediation vs Arbitration

by Jennifer Keaton

Mediation and Arbitration are generally contractually agreed upon substitutes for resolving disputes as opposed to resorting to a court to resolve it. The purpose and goals of Mediation and Arbitration, however, are quite different and often misunderstood.

The purpose of Mediation is to have the parties sit down with a neutral third party who tries to facilitate a monetary or other settlement to the dispute. Neither party has a legal obligation to settle the dispute, and any statements made during a Mediation are not admissible evidence in the event no settlement is reached. Mediation can be a highly efficient, cost effective tool. It can conclude quickly or it can take several hours as the mediator conducts multiple rounds of shuttle diplomacy between the parties. My personal experience is that after many hours the parties feel personally invested in the process and neither wishes to leave without settling the dispute. It is important to remember, however, that because the mediator’s job is to get a settlement, regardless of its terms, it is up to you to determine if you can live with the settlement terms. In the event the Mediation fails and an Arbitration provision is not contained in the contract, you can enforce your rights in a court of law.

Binding Arbitration provisions, on the other hand, are a substitute for the formal process of a court. Binding Arbitration is typically conducted in front of one or three arbitrators and the Arbitration is much like a mini trial with rules of evidence. Arbitration typically proceeds somewhat faster than a case in court, and typically at a somewhat lower cost in attorney time and expense. The result of the Arbitration is final and the parties can rarely successfully appeal an arbitrators’ decision even if it appears to be completely unreasonable or unfair.

What is Mediation?

by Jennifer Keaton

Mediation, a form of alternative dispute resolution (ADR) or "appropriate dispute resolution", aims to assist two (or more) disputants in reaching an agreement. The parties themselves determine the conditions of any settlements reached— rather than accepting something imposed by a third party. The disputes may involve states, organizations, communities, individuals or other representatives with a vested interest in the outcome.

Mediation, in a broad sense, consists of a cognitive process of reconciling mutually interdependent, opposed terms as what one could loosely call "an interpretation" or "an understanding of". The German philosopher Hegel uses the term 'dialectical unity' to designate such thought-processes. This article discusses the legal communications usage of the term. Other Wikipedia articles, such as Critical Theory, treat other usages or "senses" of the term "mediation," as for example cultural and biological.

Mediators use appropriate techniques and/or skills to open and/or improve dialogue between disputants, aiming to help the parties reach an agreement (with concrete effects) on the disputed matter. Normally, all parties must view the mediator as impartial. Disputants may use mediation in a variety of disputes, such as commercial, legal, diplomatic, workplace, community and family matters. A third-party representative may contract and mediate between (say) unions and corporations. When a workers’ union goes on strike, a dispute takes place, and the corporation hires a third party to intervene in attempt to settle a contract or agreement between the union and the corporation.

Mediation is the only way assisted by one third, which promotes freedom of choice of protagonists in a conflict.