Mediation -- What You Need To Know To Make the Right Choice

What is Mediation?

Fundamentally, mediation is assisted negotiation. It is a process used by disputing parties use to reach a mutually satisfactory settlement. To do this, they use the outside help of a mediator who is a trained, professional, and neutral facilitator who protects the integrity of the mediation and works with the parties to help them clarify their goals and objectives in order to find areas in which they can reach agreement.

Why Consider Mediation?

Mediation is often the most painless and efficient way to resolve a dispute. Compared to the alternatives, mediation is fast, fair, inexpensive, and private. Mediation sessions can usually be scheduled within a few weeks, or at most months, of a request and most cases can be resolved quickly, a half a day or day, depending on the type of dispute. Lawsuits usually take many months or sometimes years to resolve.

Mediation is a high benefit, low risk option with a high likelihood of an exceptional outcome. In mediation, the various needs of both sides of an issue are identified and ideas and concepts are exchanged until the parties can agree on a viable solution. Mediation is not final or binding until the parties are satisfied and accept the outcome. The parties risk little by proceeding with mediation first. They can always turn to litigation or arbitration if mediation is unsuccessful.

Mediation will most often save you money. Most mediators are private providers whose fees are equally split between the parties. Their cost is a fraction of the cost of a lawsuit. E.g., $1000 to resolve a personal injury case compared to $40,000 for a full court battle. And, many areas in the U.S. have community mediation centers that will mediate a minor workplace, neighborhood or consumer dispute for free or a nominal charge.

Mediation will keep your personal business private. What is discussed during the mediation is protected as "confidential settlement discussions," which cannot be legally revealed outside of the mediation or later used in court, except by an order of a judge. These orders are extremely rare. Cases involving child abuse or criminal behavior are exceptions. The parties can also shield information from each other. Each party can give the mediator information that can help clarify the issues and help resolve the problem, without disclosing the information to the other side. In a lawsuit usually everything said is open and available to the public. Your privacy receives much greater protection in mediation.

Mediation is most valuable when you are in a dispute with someone with whom you have a continuing relationship. Mediation increases the likelihood that you and the other side will be able to work together after the dispute is resolved. A lawsuit polarizes and usually ruins relationships. Therefore, a major advantage for mediation is its ability to get the dispute resolved without destroying the relationship.

Preparation for mediation is far simpler and easier than preparation for a lawsuit or arbitration. So time away from your business or family will be minimal.

Mediation does not require that you hire an attorney although you can and may have an attorney with you at the mediation. Since the mediator is proscribed from providing legal advice, the mediator may suggest that you both consult attorneys to determine your legal rights.

In mediation you are a full participant and can express your opinions and concerns rather than have an attorney speak for you. Mediation can always be reconvened after settlement if new issues arise, without effecting the original settlement.

Mediation's greatest advantage may be the control you maintain over the outcome which makes possible creative and positive solutions. You avoid bad decisions by outsiders. Control is maintained by those most concerned with the outcome. Also, you determine the style and process by your mutual choice of mediator.

How Successful is Mediation?

According to informal reports by attorneys, 85% of all mediations are successful in producing a resolution acceptable to all parties. Business disputes submitted to mediation usually settle within a few weeks to a few months. Cases with multiple parties often last longer: Major business disputes -- those involving lots of money, complex contracts, or ending a partnership -- may last several days or more. Private divorce mediation, in which a couple wants to settle all the issues in their divorce -- alimony, child custody, division of property, support, and visitation -- generally requires half a dozen or more mediation sessions spread over several weeks or months.

The mediation process improves communication, defuses emotions, and defines areas of agreement, so that even if mediation fails, your subsequent dispute resolution efforts are more effective and efficient.

What Makes Mediation Successful?

Successful mediations, regardless of the size, complexity or number of parties, all have the following five elements:

Good faith from the participants. This includes both entering into mediation with the intent to work towards resolution and respecting and complying with the rules designed to protect the integrity of the process.

The presence and full authority of the parties. If decision makers are not present it is impossible to resolve the dispute and the process ceases to be mediation. Approximately one quarter of mediations that fail d0 so because one or both parties lacked settlement authority. Those attending must have full authority to act for their side. All parties necessary to resolve the problem should have contact with the mediator.

An impartial third party facilitator. The mediator, or third party neutral, makes the process work. The mediator aids you in a neutral fashion to find your own best interest. As long as there is a neutral facilitator, you can trust you are not being abused by the other side.

A third party who protects the integrity of the proceedings. The mediator protects the integrity of the proceedings in all ways - the mediator cannot be subject to subpoena or called as a witness and generally keeps no permanent notes.

A neutral venue that supports the process. A place which supports confidentiality, participation, and neutrality.

Why Do Some Mediation Fail?

Key reasons include:

Lack of settlement authority.

Lack of preparation -- a party or attorney does not know enough about their case to settle.

Aggressive and hostile attitudes which get in the way of the search for resolution.

Lack of good faith such as when one side is out only for retribution not resolution.

Lack of power by one party creating an inequality between the parties which requires the power of a court of law to redress.

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adrr.com, a well established site which provides essays, forms, checklists, and links on mediation and ADR.

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