Mediation
What is it?
Mediation is a type of alternative dispute resolution (ADR), meaning that instead of taking someone to court or hiring a lawyer to represent you, the parties involved come together and work out a solution.
Many people are skeptical of this approach: after all, if the problem could be solved with that guy, you wouldn’t need mediation! What you need, now, is a big stick! It feels that way, but in reality, mediation is amazingly successful. Often, our own emotional investment in the situation adversely affects effective communication – both in stating our points and hearing the points of others. When another person helps bridge understanding, often clarity results and the parties can navigate together to a solution…people get “unstuck” with an impartial guide, especially if that guide has a strong set of skills designed to help.
Sometimes, however, resolution is not the outcome of a mediation. Sometimes, the outcome is a better understanding of the entire situation, including the strengths and weaknesses of each position. This is not a failure, but rather another kind of result.
The solution, when achieved, is always a product of all parties’ input. Mediation is distinct from arbitration; that is, mediators do not “decide” who is right, what the terms should be, or how things would be best solved. Decisions about terms or the best solution is answered jointly by the parties involved. The mediator acts as a guide in the conversation, sometimes making critical clarifications, but always remaining a neutral participant in the process.
Confidentiality
Depending on the mediator and state law, mediation can be confidential or not. In my practice, your process is always confidential: I do not keep session notes after an agreement has been reached or after the parties have decided to close. If an agreement is reached, I will keep a copy only of the agreement. The only testimony I will provide is in cases of court-ordered mediation: if one of the parties has not participated in good faith, I will, if required, testify about my opinion of participation, but not to content – which means nothing that was said, written or otherwise disclosed in the mediation will be disclosed by me, in any forum. In those very limited cases of bad faith, what I would discuss are behaviors such as, “Party X did not show up for 4 of 6 scheduled sessions.”
More, sometimes in the course of a mediation, one party has confidential information which s/he wants the mediator to know, but doesn’t want to disclose to the other party (yet, or ever), or s/he wants to run an idea by the mediator for input. There is a process called a “caucus” which allows for just this kind of side conversation.
Why is Mediation better?
Escalating conflict to a formal legal procedure is a lose-lose proposition from the beginning: legal proceedings are always a gamble. Even if you prevail, you have lost time, endured stress and likely had an adverse financial impact for at least some period. If you do not prevail, in some places the judgment can go on your credit report; it always becomes public record; and the financial impact is usually greater than with early settlement.
Studies have shown that people who participate in mediation have a better experience, both during the process and in satisfaction with the outcome. This is partly because you are an active participant and contributor to the solution, rather than having it “done” to you. And perhaps most importantly, although not always recognized until one has the calmness of hindsight, mediation often allows the relationship to be salvaged in a positive way, whereas lawsuits often result in “scorched earth” resentment. Plus, in comparison to the legal system as a whole, mediation is quicker and less expensive.
It just makes sense: if you could sit down and work out a solution which satisfies you with a family member, neighbor, colleague, landlord or other party at a fraction of the cost in a reasonably expedient process, wouldn’t you prefer to?
What problems can you mediate?
Any. Divorce, custody, lease or contract disputes, neighbor feuds, car accident settlements, customer complaints – any dispute can be mediated successfully. I believe that mediation is particularly great for disputes in which there may be a long-term desire to keep relationships on a positive footing, such as family disputes over probate, divorce and custody issues, partnership dissolution, or customer dissatisfaction.
Approach
Mediation is a broad term which has become more and more diverse in its meaning. For a primer on various styles of mediation, I recommend that you read the following articles: Styles of Mediation, A Study in Mediation Styles and The Narrative Approach to Mediation.
It seems obvious to say that different types of disputes are best managed with different styles of mediation. Because I have a background in the fields of counseling and law, community advocacy and business, I apply all methods needed for the issues, expertise, points of view and emotional context of the participants. My baseline approach is facilitative and transformative; however, there are times when it’s clear that one party is stuck in the “rightness” of his/her position and may need a more pointed reality check in an evaluative process. Unlike the typical idea of evaluative mediation, my focus is not on an arbitration-light mode, but rather on applying critical thinking to the stories each party is sharing, bringing to the surface discrepancies which may either block current discussions or be a potential Achilles heel if the process moves into court.
I also tend to start the process with more structure so that the rules are clear to everyone, but if the dynamics are civil, I prefer to allow a certain latitude; however, this depends entirely on the tenor of interaction between parties.
My underlying philosophy is that most conflict results from misunderstanding. Where understanding is fostered, often resolution results. Therefore, all steps and approaches taken during mediation are intended to effect maximum understanding between and within the parties.
Representation and Witnesses
Like the courts of equity, I do not allow attorneys to be present during mediation proceedings. For me, adding attorneys defeats the purpose of mediation, which is a collaborative de-escalation. If you wish to be represented in an adversarial process, the legal system offers plenty of opportunity for it. It is my experience that when parties in dispute are in mediation, we at least all know what the agendas are – Party X wants this and Party Y wants that. Attorneys in the mix add another layer of agenda, and a layer which is often not transparent, but still highly influencing and impactful. You may certainly consult with an attorney outside of the proceedings, but s/he may not be present during our meeting. Witnesses may contribute to the proceedings, as appropriate.
Attorneys versus Mediators
The role of Mediator is not the role of Attorney. With the rise in popularity and success of alternative dispute resolution (ADR), some attorneys have recognized that adding mediation to their practice is a good idea – financially, for market share, and even for philosophical reasons.
However, being a great legal strategist or expert in a certain area of law does not require the same skill set as being a great mediator: some attorneys are great mediators, too, but there is nothing within excellent mediation which requires or benefits from being an attorney. In fact, some argue that an attorney background gets in the way, feeling that when attorney mediators are involved, the proceedings are often more evaluative and resemble arbitration instead of facilitative mediation, and the costs often escalate. In my personal experience, attorneys often use a negotiation format and do not truly offer mediation as it has been discussed here. A negotiation approach physically separates the parties and the attorney acts as the go-between with information. This places him/her as the central actor who controls all information and influences the perceptions and dynamics of the parties. In my opinion, this is antithetical to mediation. No doubt some attorneys use a collaborative mediation format, but I invite you to ask any mediator specifically what format will be used.
There are pros and cons in all forms of ADR, but as a consumer, what is important for you to know is that you have a choice in background, perspective and value for your particular situation.
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