Mediation is the process whereby the parties that are involved in a dispute over anything, whether big or small, can engage an expert trained in the art of bringing about a compromise and resolution, in order to put an end to the controversy.
If done properly, the parties can always expect to improve their situation. It is a process where a trained, unbiased “middle man” can massage the differences between parties and can help make difficult issues appear to be simpler.
The Mediation process should be set in a calm, relaxed environment where stress is minimized and hopefully eliminated. It is conducted by someone who is skilled in putting people at ease and presenting contrasting ideas in the most balanced way.
There are few, if any, situations of conflict that cannot be settled or, at least, improved if the parties are willing to work patiently and diligently with a creative Mediator and allow reason and practicality to rule over ego and pride.
I have served as attorney in hundreds of lawsuits and have always found that when Mediation was undertaken, it was helpful. Even if settlement did not occur, things were learned. In some instances, such as in Home Owners or Condo Association disputes, Mediation is almost always available by law or court directive. When clients come to me as a lawyer for the purpose of filing a lawsuit over one claim or another, I often even suggest that they consider first going to pre-suit Mediation. I am convinced that Mediation is an amazing tool in resolving disputes before they go to Court and even after they are in Court but before going to trial. It is important both for those whose primary objective is to bring reconciliation and peace and for those who want to save time and money in getting close to their hopeful result.
The process of Mediation is simply started by one of the interested parties in a dispute suggesting to the other party or parties that they engage a Mediator to meet with them. If the parties all have attorneys, they generally will agree to Mediate. They then need to select a Mediator who is comfortable with handling the type of dispute to be mediated. At the commencement of the process, it is not necessary that the parties are friendly with each other or that they are even pleasant with each other. However, hostilities should not be displayed and respect should always be exchanged. The parties don’t have to like each other and generally don’t, although they often do at the end of the process, if it is successful.
Briefly, the process is started by the engagement of the Mediator, and sometimes the parties provide him/her with a brief statement a few days prior to Mediation which just reflects the facts of the dispute and what they want to accomplish to resolve the dispute. These statements can be, but are not often shared with the opposing side. When the parties come together for the Mediation Process, the Mediator generally tries to create an atmosphere that is comfortable for all parties, with light refreshments, with comfortable seating for all and with notepads and pens. While everyone is together, the Mediator will proceed to explain the agenda and that he/she will respect any confidential communication received from the respective parties and not share anything without permission.
Generally, the aggrieved party presents their position first and the opposing party respectfully listens without interruption and tries to understand the aggrieved party’s concerns. Then the other party presents their side of things. They are shown the same respect.
The Mediator then asks the parties if they have anything else to share openly. If not, the parties usually separate for what is known as a caucus. They go to different rooms and allow the Mediator to have time to go back and forth between rooms and present possibilities for compromised resolution. The Mediator is not allowed to provide legal advice or even make suggestions as to what a Judge might do. He/She is permitted to encourage the parties to consider what different scenarios and alternatives could occur and offer creative possibilities that may not have ever been considered. Sometimes the process takes quite a while, but it is up to the Mediator to determine when the process should come to an end, either successfully with an agreed compromised resolution OR in “no agreement”.
If an agreement is indeed reached, the Mediator then allows the parties to draft the language that clearly reflects the “contract” between the parties. The Mediator sometimes drafts the agreement but always insists that both sides proof and approve every aspect of it. If there is no agreement, that is also documented. If litigation is already underway, a copy of the Mediation/Report is filed with the Court.
NOW, I indicated that I felt that Mediation was always a process that was worth undertaking. This is my opinion because even if no agreement is reached, the parties should have still been able, through the process, to become more aware of the other side’s position and their emotions and their legal posture that was expressed there.
If an agreement is reached, it generally will save the parties a lot of time and money, stress and frustration. And, as said earlier, it can possibly reconcile and reunite relationships that had been abandoned and thrown on the rocks and left for destruction. Mediation has even often brought people back into a workable relationship, or, if not that, then into an amicable parting.
There’s a certain satisfaction in hashing things out and getting a conclusion to a previously unpleasant situation. It leaves one with the feeling that they’ve faced a challenge and they have analyzed it and balanced it for the most suitable outcome. Sometimes that requires just a bit of encouragement from a third party who is impartial and who goes into amicable discussion with the parties while having a primary objective of reaching a reasonable compromise with balance toward both sides.
The process requires not only a good Mediator but also the genuine best effort of both sides. If that’s available, the resolution is likely and it sure beats the delay, expense, stress, inconvenience, distraction and risks of taking the parties’ differences to a Judge or jury.
The selection of a competent Mediator is vital to the encouragement of a successful outcome for Mediation. The process is founded on peaceful diplomacy. It takes real skill and insight and the ability to recognize attitudes and characteristics that permeate the controversy that can make a difference, subjectively, as to what is good for a settlement. Hopefully, the resolution will also be good for both sides. It is the same process that is used in the negotiations between the diplomats of countries. Serious differences between parties, whether they are individuals or nations, demand the used of calm, peaceful, courteous negotiation to address the practical matters that are appropriate to be considered. It is very important to select a third party, the Mediator, who is interested in helping reach a resolution and willing to give the time and attention and creativity necessary to accomplish that purpose.
CONCLUSION: Unless someone likes controversy and is just litigious, litigation is no fun. In fact, a person should always be able to find something better and more productive to do. Sometimes, however, it cannot be avoided. If litigation comes your way, it might be a good idea to try to bring the issues to Mediation as early as possible. There are many reasons for this:
- it might resolve and be over with quickly,
- it saves a lot of money in prosecuting or defending the claims,
- even if it doesn’t settle, there is a lot to learn from the mediation process if you’re alert, such as the other party’s disposition and many of the facts associated with their claim,
- the court is going to direct you to mediation, most likely, anyway,
- it’s most always the right thing to do.
There are those who truly do thrive on controversy and they may make the mediation process very difficult; however, even then, mediation is useful to the skilled and alert party who looks for a bigger picture of the facts and is able to detect weaknesses in the other party’s personality and approach.
Mediation is always a good tool; it’s never a waste of time.