You have been mediating all your life. As a child you persuaded your parents. As an adult, you persuade your spouse and children. As an employee, you have persuaded your employer.
Mediation is a meeting with parties who have a dispute and a trained mediator who acts as a neutral. The mediator does not favor either side of the dispute but assists the parties in reaching a mutual resolution. The mediator acts as the voice of reason.
The goal of a mediation is reached when the parties believe that the resolution was fair. The two main factors in a successful mediation are the parties ability to cooperate and the skill of the mediator.
Ability to Cooperate
Mediation is a creative solution to problems, your problems. If you maintain an all or none approach, the mediation will probably fail and the legal system will have to resolve your conflict at a greater financial and emotional price.
Keep an open mind
The best approach to mediation is to keep an open mind. You don't have to automatically discount possible solutions at the beginning. This only fuels the anger of the opposing side –the side that you need to cooperate. You should ask questions and explore the realistic possibilities of the offer. Sometimes by asking the right questions, you can reveal the weakness of the offer without having to directly discount the offer. Sometimes you can steer the offer into a more beneficial one.
Length of dispute
On matters that are fresh, parties tend to maintain a defensive position stronger and longer. On matters that have existed for awhile, most favor a resolution and are flexible to solutions.
You may have more than one mediation. This is preferable if there are a lot of issues. A three hour session is a long time. The parties become emotionally drained and unless things are running smoothly and you are making progress, you should stop after three hours. You can then evaluate whether another session would be beneficial.
Skill of Mediator
The most important element in a successful resolution is your choice of mediator. While it is certainly preferable to have a mediator with knowledge of your particular dispute (landlord/tenant; property issues; divorce/separation); the mediator's ability to interact with different personalities is even more crucial. The mediator needs strong people skills. The mediator needs to have basic psychological savvy that only comes from experience. They should be creative and suggest options, lots of options. They need to be clear, organized and keep the mediation moving. Their skills should match the sophistication of the participants.
Selection of a mediator
Your life experiences should help you in selecting a mediator. If you generally like someone and are impressed with them, so will your opponent. If you dislike someone, you are not going to trust their judgment. Hire only experienced mediators. You then have the benefit of many years of conflict resolution to help you.
Can I always select the mediator?
If you arrange for a private mediator, you can. If you are using a mediator through a court system or through a company or government, you might be assigned a mediator. You can ask if an outside mediator is allowed.
How can I find out if my dispute can be handled through mediation?
If a lawsuit is filed, call the court where the matter is pending and ask if it can be referred to a mediator. If the court has a dispute resolution program, it will be transferred there. If you have an attorney, tell your attorney you wish to have the matter submitted to mediation. If you have a dispute with a company or corporation, ask if they utilize or would utilize a mediation service. Most governmental agencies utilize mediation as well.
If a lawsuit is filed and the matter is resolved through mediation, what happens to the lawsuit?
The parties enter into a written resolution and it is submitted to the judge as a consent agreement.
How do I prepare for mediation?
Always have a goal in mind of what you want and what you will settle for and back into it. Always keep your goal in mind so that you can direct the resolution.
Can I take an attorney to the mediation?
Yes. Obviously, if you already have an attorney involved in the dispute, you should take them, or you should retain an attorney who is also a mediator. They will investigate and argue both sides. Their legal experience and training sharpens their ability to persuade. You should consider the importance of the matter. If it's important, you should take your own attorney.
What if I don't want to say negative things about my opponent in front of them?
Ask the mediator to caucus. In a caucus, you speak in private with the mediator, outside the presence of the opposing side. You can speak in confidence. The mediator will not share your comments if you request a matter be kept confidential.
Should I hire a mediator who is an attorney?
Yes, but consider the mediator. Are their people skills strong? Attorneys are problem solvers. They are paid to resolve disputes. Their experience teaches them to look for an answer, deal with the controversy and seek results. This is the purpose of mediation.
Unexpected benefit of mediation
You find out the opposition's version of what happened. You find out what information (later known as evidence) they have that supports their position. This helps should the matter not be resolved and it goes to Court. You know more about what you have to disprove.
As an attorney, what do you see as the benefit of mediation?
You control the outcome. Most of the cases I handle alter individual's lives. Any time you give this control to a judge, you run a 50/50 risk it might not go your way. You need to honestly evaluate the effects of a bad result. This possibility is the reason for mediation.
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