Mediation: Resolution without conflict.
Published on March 1, 2009 by john
Legal issues can be resolved without resorting to jury or bench trials. Mediation is an option that should be explored in almost every case. This article will explain (1) the definition of mediation, and, (2) why you might benefit from mediating your case.
Nature of the Process Mediation is a process wherein the parties meet with a mutually selected impartial and neutral person (the “mediator”) who assists them in the negotiation of their differences. Role of the Mediator Mediation leaves the decision power totally and strictly with the parties. The mediator does not decide what is "fair" or "right," does not assess blame nor render an opinion on the merits or chances of success if the case were litigated. Rather, the mediator acts as a catalyst between opposing interests attempting to bring them together by defining issues and eliminating obstacles to communication, while moderating and guiding the process to avoid confrontation and ill will. The mediator will, however, seek concessions from each side during the mediation process. Forbearance from Litigation During Mediation and Confidentiality of Proceedings At the outset of a mediation process, the mediator may well seek agreement from the parties to forbear from litigation during the mediation process and to hold everything that is said in the various sessions confidential and not deemed an admission or used against any party in any other proceeding if mediation fails. Procedures: Joint Session Followed by Private Caucuses Mediation generally begins with a joint session to set an agenda, define the issues and ascertain the position and/or concerns of the parties. This allows the parties to attack the resolution process either on an issue-by-issue or group-by-group basis. The joint session is then followed by a separate caucus between the mediator and each individual party or their counsel. This allows each side to explain and enlarge upon their position and mediation goals in confidence. It also gives the mediator an opportunity to ask questions which may well serve to create doubt in an advocate's mind over the validity of a particular position. Why choose mediation? Several reasons exist for choosing mediation over other channels of dispute resolution (such as those involving attorneys and courts).
Parties to a dispute may choose mediation as (often) a less expensive route to follow for dispute resolution. While a mediator may charge a fee comparable to that of an attorney, the mediation process generally takes much less time than moving a case through standard legal channels. While a case in the hands of a lawyer or filed in court may take months or even years to resolve, a case in mediation usually achieves a resolution in a matter of hours. Taking less time means expending less money on hourly fees and costs. Mediation offers a confidential process. While court hearings of cases happen in public, whatever happens in mediation remains strictly confidential. No one but the parties to the dispute and the mediator(s) know what has gone on in the mediation forum. In fact, confidentiality in mediation has such importance that in most cases the legal system cannot force a mediator to testify in court as to the content or progress of a mediation. Many mediators actually destroy their notes taken during a mediation once that mediation has finished. The only exceptions to such strict confidentiality usually involve child abuse or actual or threatened criminal acts. Mediation offers multiple and flexible possibilities for resolving a dispute and for the control the parties have over the resolution. In a case filed in court, the parties will obtain a resolution, but a resolution thrust upon the parties by the judge or jury. The result probably will leave neither party to the dispute totally happy. In mediation, on the other hand, the parties have control over the resolution, and the resolution can be unique to the dispute. Often, solutions developed by the parties are ones that a judge or jury could not provide. Thus, mediation is more likely to produce a result that is mutually agreeable, or win/win, for the parties. And because the result is attained by the parties working together and is mutually agreeable, the compliance with the mediated agreement is usually high. This also results in less costs, because the parties do not have to seek out the aid of an attorney to force compliance with the agreement. The mediated agreement is, however, fully enforceable in a court of law. The mediation process consist of a mutual endeavor. Unlike in negotiations (where parties are often entrenched in their positions), parties to a mediation usually seek out mediation because they are ready to work toward a resolution to their dispute. The mere fact that parties are willing to mediate in most circumstances means that they are ready to "move" their position. Since both parties are willing to work toward resolving the case, they are more likely to work with one another than against one another. The parties thus are amenable to understanding the other party's side and work on underlying issues to the dispute. This has the added benefit of often preserving the relationship the parties had before the dispute. Finally, but certainly not least, and as mentioned earlier in this article, the mediation takes place with the aid of a mediator who is a neutral third party. A good mediator is trained in conflict resolution and in working with difficult situations. The good mediator is likely to work as much with the emotional aspects and relationship aspects of a case as he or she is to work on the "topical" issues of the matter. The mediator, as a neutral, gives no legal advice, but guides the parties through the problem solving process. The mediator may or may not suggest alternative solutions to the dispute. Whether he or she offers advice or not, the trained mediator helps the parties think "outside of the box" for possible solutions to the dispute, thus enabling the parties to find the avenue to dispute resolution that suits them best.
Remember, everything that is not agreed to before trial will be decided by a judge or a jury. An agreed resolution reached through mediation puts the power in hands of the parties to shape their own resolution. My firm has successfully represented parties in many matters to a successful resolution and our attorneys have served as mediators. If the firm can be of service to you, or if you have questions about how mediation can benefit you, please call us at (405) 684-6735 or e-mail the owner at john@johnhgraves.com. We look forward to the opportunity to be of service to you.