Mediation offers an alternative to arbitration. Mediation is a process in which a trained, neutral mediator facilitates negotiations between disputing parties, helping them to find a mutually acceptable resolution to the dispute. Mediation cases are a private, informal, and confidential way of settling a dispute without relying on a legal judgment issued by a judge or jury. The parties involved in mediation meet with a neutral third party to reach a mutually agreeable solution that will end a conflict. Participants may settle part or all of their differences and are not forced to agree to a solution in mediation. Rather, the mediator facilitates communication to help the parties reach a mutual agreement. Most of the time, lawyers are not involved in mediation and the parties in dispute typically represent themselves in the mediation process.
What Kinds of Cases Can Be Mediated
Mediation is available in most non-criminal matters and can be used to resolve a variety of legal issues, among others:
- Contract disputes
- Employment disputes
- Contesting a will
- Disagreements between partners in a business
- Divorces and child custody arrangements
- Landlord and tenant disputes
Mediation helps participants create a fresh, dynamic path to the assessment, understanding and elimination of the blocks in a dispute so informed agreement can occur.
When parties choose mediation, they provide themselves and the other participants, new opportunities to correct or eliminate misunderstandings and non-optimum perspectives. They also develop more effective approaches to restoring dialogue, if desired, and to create innovative keys to successful problem-solving while maintaining their self-esteem.
Mediation provides the following advantages:
- Confidentiality. There are a few exceptions, but what the parties say during mediation is confidential and not subject to the future use in a lawsuit. Court cases, on the other hand, are matters of public record.
- Costs less than a lawsuit. Mediation cases cost substantially less than court costs and attorney fees.
- Faster resolution than going to court. Lawsuits may take years to result in a court ruling, but mediation can take as little as a few hours or a few sessions.
- The parties decide. The parties in mediation, not a judge or jury, decide on the resolution.
- The parties communicate directly. Rather than communicating through lawyers, the parties speak directly to each other.
How does the Mediation Process Work
An effective mediation acts like a prism, inspiring participants to discover and share a variety of new, enlightened viewpoints while exploring participant realism and movement in the dispute at hand. The actual conduct of the mediation may vary depending upon the style of the mediator and the nature of the issues in your case.
The mediator serves as a vital catalyst for the participants, with the support of their counsel, to causatively confront and forge channels of communication between the participants. There are no court reporters, stenographers, or court officers allowed to participate. The mediator will guide the conduct of the mediation without the formal rules of evidence or procedure used in a court proceeding. The participants may work with the mediator to establish some ground rules, time limits, and the necessity of future sessions.
In most mediation cases, the following occurs:
Stage One: Convening The Mediation: The mediator’s first TASK is to speak to counsel about the judge’s suggestion to participate in mediation. The ACTION is to get counsel to start talking about the case by first connecting or building a personal rapport on the phone. We discuss the process in general, what he could expect and the costs, and selected a tentative date for the mediation. the RESULT is to create a “willingness” to come to the table, not to actually settle the case.
Stage Two: Opening Session: The TASK in stage two is to describe the process so that the parties would know what to expect from the session. The ACTION is to advise the parties that we would explore a risk analysis of the likelihood. The RESULT is a sense of “Safety and Hope” about the process of mediation and prospect for settlement in order to allow the parties to feel comfortable enough to speak candidly with me about their objectives, and open enough to accept new information or at minimum a new spin on old information.
Stage Three: Communication: The TASK at this stage is to allow the parties an opportunity to explain their positions both in front of each other and in private meetings with me. The ACTION is a series of open-ended questions followed by active feedback which permits me to listen for clues to identify the dispute. The RESULT in this stage is that the parties have a chance to air their perspectives and feel confident that they have been heard. Often, too, this communication discloses hidden values and interests. It is critical to the success of a case to spend some time in the Communication stage in order to surface all sides of the conflict and in essence let the parties have their day in court.
Stage Four: The Negotiation and Caucus: The TASK is to begin the bargaining dance between the parties. The ACTION is for the mediator to conduct private meetings with the parties to obtain a better understanding of each party’s side and to assess possible solutions. The RESULT is to encourage “flexibility and innovation.” This allows us to close the gap in the negotiation and ultimately come together.
Stage Five: Closure: Knowing that a settlement is imminent, the mediator’s remaining TASK is to finalize the agreement. If the parties reach a resolution, the mediator’s ACTION is to discuss the paperwork involved and may put the agreement in writing and ask the parties to sign it. In many states, these agreements can be upheld in court. The RESULT here is that both parties make an “Informed Decision” about settlement, and that everyone could deliver on their promises.
What Makes A Great Mediator
Mediation is a science and an art. Although many mediation skills may be taught, the development of a skilled mediator requires experience in dealing with people in all conditions and under all circumstances. Although there are many intangibles in the definition of a “good” mediator, certain character traits are invaluable.
Alertness: The mediator must be alert on several levels while mediating. She must concentrate on the information being provided by the source and be constantly evaluating the information for both value and veracity; what the party says but also to how it is said and the accompanying body language to assess the party’s truthfulness, degree of cooperation, and current mood. She needs to know when to give the party a break and when to press the party harder. In addition, the Mediator constantly must be alert to his environment to ensure his personal security and that of the parties.
Patience and Tact: The Mediator must have patience and tact in creating and maintaining rapport between herself and the party, thereby enhancing the success of the process.
Credibility: The Mediator must provide a clear, accurate, and professional product and an accurate assessment of his capabilities. She must present herself in a believable and consistent manner, and follow through on any promises made as well as never to promise what cannot be delivered.
Objectivity and Self-control: The mediator must maintain an objective and dispassionate attitude regardless of the emotional reactions he may actually experience or simulate during a questioning session. She must have exceptional self-control to avoid becoming emotionally involved with the party.
Adaptability: A Mediator must adapt to the many and varied personalities which he will encounter and to all types of locations, operational tempos, and operational environments. By being adaptable, she can smoothly shift her questioning and approach techniques according to the operational environment and the personality of the party.
Perseverance: A tenacity of purpose can be the difference between a Mediator who is merely good and one who is superior. A Mediator who becomes easily discouraged by opposition, noncooperation, or other difficulties will not aggressively pursue the matter to a successful conclusion or exploit leads to other valuable information.
Appearance and Demeanor: The Mediator’s personal appearance may greatly influence the conduct of any mediation and attitude of the party toward the Mediator. Usually an organized and professional appearance will favorably influence the party. If the Mediator’s manner reflects fairness, strength, and efficiency, the party may prove more cooperative and more receptive to questioning.
Contact a qualified attorney to represent your interests in the mediation of your dispute.