Avoid the pain and expense of litigation.....

Mediate!

What exactly is mediation?

There are many definitions of mediation. The best one, in my view, is that mediation is a private, voluntary, informal and non-adversarial process where a neutral person selected by the parties assists them reach a mutually acceptable agreement.

Who are mediators?

Mediators are professionals who are trained to mediate. Usually mediators are members of other professions in addition to being mediators. Lawyers and therapists frequently act as mediators. It is important to know that when a lawyer serves as a mediator for you, he or she is not acting as your attorney.

What kinds of disputes can be mediated?

Almost any kind of conflict can be mediated, ranging from personal disputes such as divorce to global controversies. Former President Jimmy Carter has mediated a number of international conflicts. Other examples include family disputes, business discords, disputes in educational settings between parents and schools, community conflicts and in health care situations.

Why would someone choose to mediate?

Mediation offers a number of advantages to people who find the most common method of dispute resolution, litigation, unacceptable.
The first reason often given for why mediation is the preferred process is that it is less expensive. Generally, the parties share equally the cost for the mediator. Often, the mediator is paid at the close of each session and a large retainer is not required. This seems to make the process of mediation more productive as each disputant realizes that the more intensive his or her effort is, the less money the process will cost.

Mediation is also voluntary. That means that at any given time any disputant can quit and simply walk away. While this might appear at first glance to be a disadvantage to mediation, it actually strengthens the process because the disputants are there by choice and are more invested in finding a solution.

The confidential nature of mediation also makes it a process that people value. In Massachusetts, what goes on in a mediation session is considered confidential by statute and neither party can later subpoena the mediator to testify in court. This helps to provide an atmosphere conducive to settlement because the parties know that they may negotiate without fear of what is said.

Privacy is another reason people decide to mediate. Because many disputes are personal in nature, courtrooms which are open to the public offer little advantage to either side. In mediation, the personal dignity of all sides is preserved by the privacy of the process. When people litigate, their lives are exposed to the world and the pain of this process adds to the intensity of the conflict.

For disputants who will have to continue to deal with one another even after an agreement is reached, mediation offers an added bonus. Often without even realizing it, parties learn skills during the mediation process which enable them to deal more effectively with potential conflicts in the future. For a couple with young children who are in the process of divorce, this advantage cannot be overstated. Considering the number of years that the parties will need to communicate with one another and the inevitable difficulties that raising children can bring, learning how to disagree in a way that leads to a solution benefits the parties and the children.

Finally, mediation gives people control over their own lives. When you stand before a judge, you take a chance that the decision by which you will have to live is totally abhorrent to you. You caste your fate to a stranger. While most judges make earnest efforts to act prudently, no judge knows your life or your dispute as well as you do. It is far better to have an active voice in reaching an agreement and to get at least a part of what you want. Many people believe that, if you have some input in resolving a dispute, the chances for future disputes are reduced.

Do I still need an attorney if I mediate?

It depends to a large extent on the nature of the dispute. Many people, especially when mediating complicated matters, will confer with an attorney to get information they can use during mediation. In those situations, the lawyer's role is to educate the client.

In other less complex situations, people choose not to use an attorney at all. If a written agreement is to be entered, lawyers can be used to draft and review the document the parties will execute. The role of the lawyer in these situations is limited and very different from the role a lawyer plays as an advocate. Many people believe that even when lawyers are used in mediation, it is in a far more cost effective manner than in litigation.

Will mediation work when there is a power imbalance between the parties?

It can, provided that the right conditions are imposed. The mediator is concerned with a fair result and will attempt to keep negotiations on an even playing field. Different and creative formats for mediation can be used to achieve that. For example, disputants may sit in different rooms so that the mediator can go back and forth with proposals without either disputant experiencing intimidation. Occasionally, attorneys may accompany disputants to mediation for support. Mediation is a flexible enough process that different innovations may be tried until the right one is found. For those who fear that they will be taken advantage of by the more powerful disputant, mediation can be empowering. Because mediation is voluntary, no one should be afraid to try it.