This article explains what mediation is and some of the reasons that mediation is superior to litigation as a means of resolving disputes. (This article is long and has some detail. If you prefer bullet points, short and sweet, click HERE.)
What is Mediation?
Mediation is a negotiation that utilizes a neutral party – a mediator — to help facilitate the discussion between the parties. Generally speaking, mediation provides a mechanism to address conflict long before it escalates to the point of litigation. There is no need to wait until a full blown “lawsuit” has developed. While mediation can be used as an alternative to court, mediation also can enable parties to completely bypass the court system. Using mediation, parties to a dispute can resolve their dispute on their own timetable, on their own terms, and in a way that helps them find win-win solutions for everyone (or, at least, solutions that each party can live with).
One beauty of mediation is that it can be used on any type of conflict. It works just as well with parent-teenager issues as it does with disputes involving international water rights. While there are some circumstances where mediation is not appropriate, most situations can benefit.
Even if you are already in litigation or already have a lawyer, you can still use mediation. Different attorneys have different styles. Some attorneys enjoy the excitement and drama of the courtroom and prefer not to mediate. But this can turn into an expensive or high risk gamble for you. Other attorneys welcome mediation. Regardless of which style attorney you have, if you would like to pursue mediation you should discuss your preference with your attorney.
There are many different styles and methods of conducting a mediation. Because each conflict is unique, your mediator will choose a mediation style that is designed to achieve resolution in your particular case. Some mediations are casual, and others are highly structured. In some mediations, the parties never see each other, and in others they all sit at the same table through many sessions. You should discuss your preferences and thoughts about this process at your pre-mediation meeting with your mediator.
The goals of the parties also determine what style of mediation is appropriate. In some cases, the parties really do just want to settle their legal case, move on, and never see each other again. The style of mediation employed in this type of situation is called evaluative mediation. The role of the neutral in such a case is to help each party “evaluate” the monetary value of their case and settle on a number. Other types of mediation are very different. In a transformative model of mediation, a conflict is seen as an opportunity for the parties to gain insight into their mutual needs and to work together to achieve the common goals of meeting the needs of all parties. It is not unusual for parties to a transformative mediation to be deeply committed to improving their relationship and to set the stage for better problem solving in the future. In the middle of the spectrum between evaluative and transformative mediation is a model called facilitative mediation. In facilitative mediation, both parties are focused on finding win-win solutions through a process that is transparent and fair. Most professional mediators have capability of utilizing all three methods of mediation and will vary styles according to the needs of the parties in the particular case.
There are some things that all mediations have in common. Mediation is always voluntary. Both parties must agree to participate, and either party may discontinue mediation at any time. Sometimes, when not all parties agree to mediation, the mediator may coach one party in ways of managing the conflict alone. This is called conflict coaching rather than mediation.
The parties to mediation may obtain legal counsel at any time and do not lose any rights that may be provided to them under contract or law. Mediation is also confidential, unlike litigation which creates a public record of the dispute. Mediation is also designed to be convenient, in a comfortable setting, and is always conducted in a neutral location that all parties agree upon.
The pace of mediation is also in the control of the parties. Mediation can be quite fast and expedient. Parties can reach and implement an agreement at any time, with no need for the long waits that court entails. (Put an end to sleepless nights, immediately!) On the other hand, if the parties wish, mediation can be slow. Sometimes people need time to mull things over and adjust to ideas. So long as the parties are moving forward with progress, mediations can be scheduled over several sessions, thus enabling all parties to sort out all options and come to peace with various solutions. As much as possible, mediation aims to keep a pace that you are comfortable with.
Advantages of Mediation
A key advantage of mediation is that it enables the parties to actually communicate and work out their dispute. A high percentage of cases (approximately 95 %!) filed in court are settled prior to trial, with or without the aggrieved party ever getting to state his case. If you do go to trial, the highly structured nature of the adversarial process usually does not allow witnesses to say what is really important to them. Cross examination is focused on pointing out weaknesses rather than initiating dialogue. Mediation allows you to air your dispute fully, and utilizing a process which is designed to encourage the other party to really listen and to hear your side. It gives both parties an opportunity to speak, and to listen. This is in contrast to court, where the goal is not communication but rather persuasion.
Mediation can also help preserve what is left of relationships. The mediator will control the manner in which these things are expressed, so that negative statements are communicated in a manner that does as little damage to the relationship as possible. Indeed, by stopping escalation of conflict and controlling the negative sparks that can fly during disagreement, mediation can to keep the parties on speaking terms and avoid further polarization and hard feelings. For this reason, mediation can be especially useful for parties who desire to resolve conflict while preserving a family or business relationship, though this is not required if parties do not seek it.
If parties desire, mediation can leave certain matters open for future negotiation. One hallmark of mediation is that the parties are in complete control of their agreement. If the parties choose, their agreement may memorialize the resolution of certain matters and leave others open for future discussion when the time is ripe.
Unlike litigation, which tends to escalate conflict, mediation tends to tone it down. Litigation forces parties to assert positions and take strong actions to protect their rights, and this can be both hurtful and polarizing. Mediation, in contrast, encourages parties to set aside “position based” bargaining and to seek, instead, to find win-win solutions. While it may not always be possible to find a completely win-win solution, there is at least the possibility of creating one, unlike court which will always declare a “winner” and “loser”. (The judicial definition of “winner” also does not take into account the tremendous cost of risk, stress, and attorney fees from protracted litigation.) If your goal is to achieve peaceful resolution of a conflict, mediation is likely to be your best option for doing so.
Mediation also allows for broad, creative problem solving. Whereas courtroom remedies are limited to a few solutions (such as restraining orders and money damages), parties to mediation are free to discuss and find very creative ways of meeting their key interests. This may, or may not, involve payment of money damages. It may or may not include apologies or all sorts of other remedies that a court would not have any power or authority to order.
There are other advantages of mediation. Through experiencing and practicing the skills of positive negotiation, as coached by the Mediator, the parties gain practice and skill in de-escalating conflict and in collaborative problem solving. Mediated agreements also tend to stick, because all parties have ownership in the solution and feel it is fair to them.
Finally, but very importantly, parties who attempt mediation do not forfeit right to any other remedies, so parties can still pursue court remedies if mediation fails. Your mediator cannot be compelled to testify in court as to any matter that was discussed in mediation. Nothing said by any party during a mediation can be introduced as evidence or used later to impeach that party. The goal is to create a safe environment for frank discussion of the issues, so that parties need not fear the mediation being used against them later. Courts protect and support this process by refusing to allow discussions during mediation to be brought up later in court.
Mediation or Arbitration?
Some people confuse the terms “mediation” and “arbitration,” but there is a significant difference between the two. In arbitration, the parties choose a neutral, third party – the arbitrator — who decides the outcome of the case. It’s like having a private judge who decides your case for you. The focus in arbitration is still on presenting one’s “case” to a third party who will impose a decision. In mediation, in contrast, there is no judge. The mediator does not determine the outcome of the dispute – the parties do. What the mediator does control is the process of mediation. The mediator acts as a facilitator to conduct the meeting and will follow a process which is designed to help parties reach agreement that is authentic and fair.
Because parties to mediation retain 100% control over their agreement, one key advantage of mediation, is that it avoids putting a decision concerning your life in the hands of a stranger – whether judge or arbitrator – who doesn’t really know you or your values. (It also removes the incentive to persuade an outsider that one party is good and the other evil, removing much of the motives that underlie positional bargaining.) On the other hand, some disputes are indeed difficult to settle. Parties to mediation may decide ahead of time that if they fail to reach agreement through mediation, they will submit the dispute to arbitration rather than going to court. Such a case is termed a “mediation / arbitration”. In a high conflict situation where you feel agreement may be impossible, you may wish to discuss with your mediator the advantages and disadvantages of a mediation / arbitration agreement.
Cost Effectiveness of Mediation
Resolution of any serious legal matter has long term consequences. It is best not to be “penny wise and pound foolish”. In some cases, you will need a lawyer, perhaps even in addition to a mediator. It is important not to cut corners on cost at the expense of quality. So, if you’re going to have to hire a lawyer anyway in a highly contested case, you might ask, why would a mediator be useful? The simple answer is that even on the eve of trial, settling a case through mediation is more likely to keep you in control, and it will still be less expensive than going to court.
The mediator, as a professional, will charge an hourly or daily fee similar to that of an attorney. However, parties generally split the mediator’s fee. Additionally, the mediator helps to get the conflict resolved in a way that avoids escalation of conflict with its associated costs. This means less court action, which translates into fewer attorney hours for both sides. And it helps the conflict get resolved at its root, ensuring a resolution that is less likely to require court enforcement of a recalcitrant party later. If an agreement is reached, mediation brings authentic closure. It holds potential to address root causes of conflict and to solve those causes through non-monetary means. By addressing root causes, it removes that splinter that has been causing the irritation. It also can bring a final end to a dispute.
What is the Downside?
Mediation does require parties to give up a few things. Hatred, revenge, bitterness, and dwelling on the past are a few things that are helpful to leave behind if one is to consider mediation. Parties to mediation need to be able to focus, instead, on moving forward and exploring what it will take for them to be able to put this issue behind them, what will it take to bring honest closure, healing, and forgiveness. This is easier said than done. The good news, however, is that healing is possible, especially with help from resources to which your mediator can refer you. If bitterness and desire for revenge are getting in the way of healing and closure, this is an obstacle; but it need not be an insurmountable obstacle, if you truly wish to get beyond it.
Another downside is that mediation is only appropriate in cases where parties are committed to basic ground rules of honesty, fairness, and fair play. Situations where there is abuse, extreme imbalance of power, intimidation, or fraud and dishonesty, are not appropriate for mediation.
The Effect of Mediation
If an agreement is reached, the mediator will draft a “Memorandum of Understanding”.
A rough draft of the agreement is first signed by the parties before they leave the mediation. Soon afterwards, the mediator will produce a final version for the parties’ agreement. Once signed by the parties, this final “Memorandum of Understanding” is a contract between them which will be as binding and enforceable as the parties choose to make it, including that the agreement may be enforced through court action if necessary.
If no agreement is reached, the mediation concludes and the parties may proceed to any other remedies available to them to resolve their dispute.
In most cases, mediation can work! It all depends on you, and your opposing party to the conflict. What have you got to lose by trying?
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