I’m often asked what is mediation and what can be mediated, and what can’t be mediated. The answer is actually pretty simple and pretty basic: Anything two or more parties disagree about can be mediated. Let me go one more step: Any thing two or more parties disagree about should be mediated. Almost anything can be mediated if the parties wish to try. Mediation is now being used to settle wars, international boundary disputes, sexual harassment cases, workplace problems, lawsuits, neighborhood disputes, real estate claims, contractor issues and divorces.
Mediation is an informal dispute settlement process run by a trained third party (me), called a mediator. Mediation is intended to bring two parties together to clear up misunderstandings, find out concerns, and reach a resolution. The process is voluntary, although it may be urged by an agency like the Equal Employment Opportunity Commission (EEOC).
During the mediation, each side will present its view of the issue, and I will work with each side in a caucus to attempt to work out a settlement. At the end of the process, I can present my findings and present a potential solution to the issue. The mediation process, unlike arbitration, is non-binding; that is, I do not impose a decision on the parties, but attempt to present a solution that is acceptable to both parties.
Mediation can be used in divorces, real estate, and labor bargaining, and in other disputes, in an attempt to keep costs low and avoid taking a case to court and therefore avoiding the risky outcome when relinquishing control to the legal system.
Feel free to contact me to discuss your mediation and dispute resolution needs…
Advantages of Mediation
In some situations, mediation may be preferable to filing a lawsuit. 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.
What Occurs During Mediation
In most mediation cases, the following occurs:
- Introduction. The mediator explains the rules and process involved in mediation.
- Statements by the parties. Each party has the opportunity to describe the dispute.
- Identification of the dispute. The mediator will ask the parties questions in order to gain a better understanding of the conflict.
- Private caucuses. The mediator will conduct private meetings with the parties to obtain a better understanding of each party’s side and to assess possible solutions.
- Negotiation. The mediator will help the parties reach an agreeable solution.
- Written agreement. If the parties reach a resolution, the mediator may put the agreement in writing and ask the parties to sign it. In many states, these agreements can be upheld in court.
Family mediation: separation and divorce
A couple who owned a greenhouse and farm stand business decided to separate. Although their disagreements were intense at times, both were committed to their three children, and wanted to avoid the high costs and horror stories they heard about litigated divorce. They discovered that they could talk more calmly and productively with their mediator, get the advice they needed from financial, legal and other advisors, and make workable plans for the family business. Now, both are active in their children’s lives, and they can make plans together for the kids without fighting.
Family mediation: succession planning
A farmer leased 200 acres to give his parents some income and security. He subleased the land to a neighbor. In applying for a new FSA loan, he realized the full extent of the family debt crisis. After an initial adverse decision, he met with the loan officer, local bank manager, financial advisors, family members (who had serious disagreements) and a mediator. After a couple of meetings, the family realized they would have to work together to keep the farm, and were able to work out a plan to restructure the debts. Today the farm is profitable again and, thanks to the FSA loan, they were even able to expand production.