Aviation Technical Mediation

Mediation is an alternative form of dispute resolution that has been around for decades. It is usually done outside of the court system. It may however be urged by a Judge or suggested by an attorney. It may be used without the parties even consulting an attorney. It involves the use of a completely impartial mediator who is acceptable to both parties, and whose sole purpose is to help the parties reach a mutually agreeable solution or settlement. It can be used anytime where there is a dispute between any two entities, whether individuals or companies. It is used in divorce settlements, contract disputes, employment disputes, personal injury, and recently in aviation disputes. In aviation, technical mediation can be very effective in resolving purchase disputes, disagreements resulting from maintenance / overhaul, and where appropriate, to resolve technical issues in air crash cases. It is not used in criminal cases per se, although it has been used in non violent criminal cases.

There are several advantages to mediation over litigation. It is usually far less costly, depending upon the complexity of the case. It is generally much less adversarial than litigation, which is of great importance in those situations where a continued or future relationship between the parties is desired. The amount of time and energy devoted to the dispute is generally far less. The process is much less formal than litigation or arbitration. Both participating parties determine the outcome, rather than a judge or jury. The results are not binding, as in arbitration, unless both parties agree with the solution. If desired by the parties, the matter remains completely confidential. Best of all, it is completely voluntary, and does not usurp the right to proceed with litigation, if the results of the mediation are not satisfactory to either party. And most importantly, any agreements or admissions cannot be used in any subsequent litigation or arbitration.

In the realm of aviation, mediation has been used for years, but only in business disputes.

Recently it is being used more often in aircraft accident cases involving litigation. In order for mediation to succeed in air crash, the parties must need help with complex technical questions and the desire for revenge has to be reduced. Not an easy task. In those cases where there are some mitigating circumstances or shared liability, or where the retribution factor can be reduced, mediation offers a much less costly alternative and should be explored.  In the shared liability case involving comparative percentage fault mediation is particularly attractive. In those cases where the case is not particularly strong or the outcome is in doubt, mediation is certainly the best avenue.

The key to a successful outcome to mediation is in the selection of the mediator who, in the aviation case, should be not only a trained mediator but should have an extensive background in aviation. In an aircraft accident or personal injury case he should have some background in accident/ incident investigation or be partnered with someone who has that background. The mediator need not be a lawyer. The earlier the case goes to mediation the better; however mediation can occur at any time, even before litigation and certainly during. All that is needed is the desire for a settlement.

There are two forms of mediation. Under the first form the mediator acts as a facilitator whereby he attempts to facilitate communication between the two parties. The idea is to help both sides understand the views of the other. In the second form the mediator evaluates the positions of each side and gives a recommendation for the settlement of the dispute. Keep in mind this recommendation is non binding, the parties still have to agree to the recommendation. The effective technical mediator may even be asked for a confidential written opinion that the parties can use in their settlement analysis and discussion.

Mediation is not always the best choice. In the case where one party is clearly at fault and bad faith is evident it is unlikely that a cooperative attitude will be present and mediation will surely fail. In cases where a precedent is desired to be established or a public vindication is desired litigation is the only alternative.

An experienced aviation lawyer, who sometimes advises us, explains that he has found technical mediation extremely useful in resolving aviation disputes over monetary loss not involving death or personal injury. However, he even knows of death cases where emotions ran high, and settlement demands were excessive, where a good technical mediator helped the parties understand the causes of the crash so that they could negotiate more objectively.

© 2004 Roy B. Liggett, Jr.