What is Mediation?
Mediation is an informal, yet structured negotiation with an independent, neutral third-party (the mediator) facilitating the process. It can be an informal meeting or a scheduled conference, depending on the desires of the parties involved.
How Does Mediation Assist in the Resolution of Conflict?
In a mediation, each participant is given the opportunity to explain their position and perspectives as they relate to the underlying conflict. Each person must listen to and reflect upon the other’s viewpoint, and in many cases, engage in certain techniques which confirm that they understood. The ultimate goal is to have each participant empathize with the other’s perspective, even if only slightly. Empathy fosters trust, enlightens all the participants and is an essential element in approaching resolution.
Is Mediation Affordable?
Mediation is very affordable! Most mediators charge between $100 and $300 per hour, divided equally between the parties. Retired judges often charge more than $300 per hour. Compared to the extraordinarily high cost of litigation, coupled with its accompanying one to two years of emotional and personal involvement and ultimate uncertainty, mediation is a comparative bargain.
Is Mediation Effective?
Mediation is very effective. Although statistics may vary among organizations and regions, more than 87 percent of all disputes are settled in mediation.
Why Would You Choose Mediation?
There area number of reasons that people opt for mediation as compared to regular litigation. These reasons include:
- Privacy: The process of mediation is confidential as it relates to all participants, including attorneys and the mediator. Therefore, anything that is discussed in the mediation is confidential. Any documents that are exchanged in the mediation are confidential. Any legal or other theories advanced in the mediation are confidential. Mediation is not a matter of public record, and therefore, the participants’ privacy is secure.
- Control Over the Outcome: In mediation, there is no judge sitting on high in a black nightgown will decide the fate of your dispute. There is no jury of your peers will be holding your future in their hands. You have the unique opportunity to “tell your side of the story” without lawyers objecting that what you’re saying is inadmissible for some reason. You, along with the mediator, can have the experience of “building a bridge” to your opposition, essentially crafting your own resolution for your dispute.
- Preserving a Friendship: Some relationships are important to resurrect or maintain intact. Business partnerships, relationships of long standing, among others, are often stabilized and preserved as a result of the mediation process. That is nearly an impossible feat if you’re trying to accomplish that with litigation.
- Personal Responsibility: In the mediation process, good mediators frequently encourage the participants to assume personal responsibility for their respective roles in the underlying conflict. This means among other things not blaming others, fate, or the gods for your part in the dispute. It means admitting your own fault for the conflict (even if only done privately with the mediator). This is an extremely important concept. Why? Because it is instrumental, perhaps the first step, in reversing the cycle of conflict.
Who Wins and Who Loses in a Mediation?
If the mediation is conducted under the watch of a competent mediator, both sides “win” and there is no “loss” on either side. That does not mean, however, that both sides walk away from the mediation necessarily happy or content with the outcome. Consider the following sayings:
- Even a poor settlement is better than the best fight.
- Each side needs to be at least a little bit unhappy with the result; that means that each side gave up something of value to the other.
- Closure and certainty are everything!
In general, neither side is going to be perfectly happy with the outcome of a mediation but they tend to be much happier than if they’d gone to trial.
“A compromise is the art of dividing a cake in such a way that everyone believes he has the biggest piece.” — Ludwig Erhard
Is Mediation Legally Binding?
Although the mediation process itself is voluntary (non-binding), the ultimate resolution or settlement becomes binding and legally enforceable if the language used in a contract or agreement is binding. That is, a mediator wants to help the parties come to a mutually agreeable solution to their problems but cannot force the parties to adhere to it unless the agreement is put down as a written contract with both parties agreeing and signing to the terms.