When All Else Fails...Consider Mediation

By Alan Schapiro, LL.B.

Negotiation, mediation and arbitration are some of the ways to resolve disputes without going to court. 

In essence, mediation is facilitated negotiation. The mediator - a neutral third party - helps the disputing parties evaluate goals and options and finds a solution that works for everyone. 

More and more, people are turning to mediation to resolve conflicts in areas such as divorce, custody, personal injury and commercial disputes. Mediation is a popular way to resolve disputes because it is quick, cheap and fair, in the sense that the parties themselves reach an agreement rather than having a judge or jury decide for them. All disputing parties feel they are actively participating in the process and they have the power to craft an agreement that works for them. Recognizing this, courts are also beginning to require people to use mediation to settle civil suits, before the matter goes to trial. 

Compared to a lawsuit, mediation is quick, confidential, fair and inexpensive. Mediation sessions can be scheduled in a matter of days and most sessions last only a few hours or a day or two, depending on the type of case. In contrast, lawsuits often take many months, or even years, to resolve and cost thousands of dollars. Mediation is particularly valuable when the dispute involves another person with whom-either by choice or circumstances-you need to remain on good terms. While resolving a dispute, lawsuits may polarize and ultimately ruin relationships. 

Since a mediation is confidential, what you say during it cannot legally be revealed outside the mediation proceedings or used later in a court of law. By contrast, one of the drawbacks of going to court is that, by and large, everything said or submitted in connection with a lawsuit becomes public information. 

An effective way to proceed is to obtain the commitment by the parties to mediate in the first instance, and, if no settlement is reached, to proceed to arbitration. This two-step approach has the built-in incentive that an agreement may be concluded quickly and inexpensively if the parties negotiate in good faith, coupled with the disincentive that a decision will be made for the parties at some cost, in terms of money, time and relationship, if negotiations fail. 

Mediators employ different strategies and techniques to resolve disputes. Some function solely to facilitate the parties' negotiation, while others evaluate matters that are important to the resolution of the dispute. This helps the parties understand the strengths and weaknesses of their positions and, if they don't reach a resolution, what the likely outcome of litigation or another process would be. 

The process of thoughtfully selecting a mediator for a particular dispute can be quite complex. Some key attributes necessary are an outstanding career history, an unquestionable integrity, the highest respect of the professional community, a judicious temperament, strong negotiating and conciliating talents, creativity and flexibility, an unflagging sense of commitment and strong mediation experience. In certain circumstances, expertise in the subject matter of the dispute may be helpful, depending on whether or not the mediator will be giving the parties an evaluation. Mediation presents an exciting and better alternative to litigation, and one which parties are seizing upon to empower themselves rather than judges or arbitrators, to settle their disputes and mend fractured relationships. 

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