What Is Mediation?
Mediation is the intervention into a dispute by a neutral third-party who has no decision making authority to resolve the dispute. The mediator assists the parties of the dispute in an effort to resolve the issues between them. The mediator facilitates the parties in the process of problem solving and guides them toward reaching a mutual and voluntary settlement agreement. The parties have the authority to resolve the dispute.
Mediation is used for a wide variety of disputes where parties want to resolve conflict out of court.
What Mediation Is Not
Mediation is not about determining guilt or innocence nor is it to about who is right and who is wrong.
Types of Conflict I Mediate
- Corporate & Workplace: contract & consumer disputes, wrongful termination, EEO complaints such as sexual harassment & discrimination
- Faith, Government & Non-Profit: foundation, board of directors & leadership disputes
- Community: landlord/tenant, roommate, HOA and neighbor issues, land use
- Family: post-divorce/co-parenting/custody issues, parent/youth
- Care & Services: elder care, dependents with disabilities issues
- Discrete & Confidential: Aside from the final agreement, there is no record of the process
- Efficient: Mediation is usually faster than going to court
- Self-Empowering: Mediation puts the resolution process in the control of both parties.
- Optimal Agreements vs. Judge’s Decision: Each person has a voice in the outcome and the final agreement can be as unique and creative as the situation requires
- Effective: 90% of all cases that are mediated are resolved and studies have shown that there is a higher compliance rate with mediation agreements than there is with court orders.
- Be Heard: Each person has the opportunity to speak uninterrupted
- Maintain or Improve Relationships: Collaborative process fosters understanding and mutual interest
- Cost Effective: Avoids costly litigation expenses and excessive attorney fees
Intake: I meet with each party separately by phone or in person to describe the process, answer questions and assist in identifying and clarifying the issues and interests.
Mediation: Parties come together with me to meet face to face in a safe environment. The mediation process is structured to provide the opportunity to talk, listen and to effectively communicate the issues.
Agreement: When parties come to an agreement on how to settle a dispute, the agreement items are written into a mediation agreement (Memorandum Of Understanding or MOU) and signed by the parties.
The mediation process follows a specific structure:
- Mediator’s Introduction: Mediator describes the process, guidelines and roles
- Client Statements: each party explains the situation from his or her perspective
- Client Responses: Parties respond, ask questions and provide clarification if needed
- Identify Issues: A list of issues to be resolved is developed
- Generate Possible Solutions: Parties work together to generate ideas
- Negotiation: Solutions to each issue are developed using a collaborative process
- Settlement Agreement Reached & Drafted: Parties complete mediation with agreement written in their own words.
How is a Final Agreement Enforced?
Mediation is for parties who have the mutual intention to honor the final, jointly created MOU. Studies have shown that the compliance rate for mediated agreements is higher than there is with court orders. If one party feels that another party is not complying with the MOU, they can request another mediation to clarify or change the terms or or they can choose to litigate.
What if We Can’t Reach an Agreement?
About 90 percent of all mediated cases are resolved. Sometimes it takes more than one session to work with all the issues and reach an agreement. If mediation does not result in an agreement, you can continue the conflict, choose to leave things unresolved, or go to court. Sometimes simply going through the process restores harmony or provides healthy closure and parties choose not to write a formal agreement.
How Do I Get the Other Party to Mediation with Me?
There are several ways to bring up the option of mediation to a party with whom you are having a dispute. How you choose to do this might depend on several factors such as the level of hostility between you and them, whether or not the other party is an individual or a company, or your comfort with explaining the mediation process.