20 Things You Should Know About Mediation

1. Mediation is a process by which a neutral third party - a mediator - acts to assist parties in reaching mutually acceptable and voluntary agreement with respect to matters in dispute.
2. Mediation can resolve disputes quickly and satisfactorily, without the expense and delay of formal investigation and litigation.
3. The mediator helps to identify issues, reduce obstacles to communication, explore settlement options, and foster joint problem solving. All decisions are made by the parties themselves in an environment where cooperation rather than conflict is encouraged.
4. Representation by an attorney is permitted, but not required, in mediation. While mediators may not give legal advice or interpret the law, they will refer parties to impartial outside experts within the disability and legal communities when questions or issues needing clarification arise.
5. Mediation is a forward looking process. It does not focus on the past nor does it seek to assess blame. The goal of mediation is to enable the parties to plan for and deal with their futures.
6. Parties are more likely to comply with the terms of an agreement which they have fashioned themselves, rather than one imposed upon them by the court.
7. Since mediation can generally be concluded in a limited time frame, there is less delay, confusion and uncertainty as to the outcome, and the emotional toll on the parties is greatly reduced.
8. Mediation is informal, non-adversarial and, in order to promote candor, totally confidential. The mediator cannot be called as a witness in any court proceeding. Settlement proposals discussed during the course of mediation cannot be revealed in later court hearings.
9. Since mediation is voluntary, a party who becomes dissatisfied with the mediation process can withdraw at any time. This insures that neither party can intimidate or exploit the other party or manipulate the process itself.
10. A mediated agreement will generally cost a fraction of the cost of adversarial litigation in court.
11. Mediation recognizes that both parties have legitimate needs and helps develop options that will successfully reconcile those needs to the satisfaction of both parties.
12. Mediation is a process committed to self-determination. Its purpose is to promote identification of issues, explore alternatives for resolution and allow the settlement of issues by the parties themselves.
13. Only after an agreement has been reached by the parties (and reviewed and approved by their respective attorneys, if desired) does the mediated agreement become final and binding.
14. Through mediation the parties can make agreements with respect to matters over which the court has no jurisdiction. Matters which may be legally irrelevant in court may be considered and resolved by the parties.
15. Through mediation, the parties can fashion creative solutions which can benefit both parties -- expanding the pie, rather than halving it.
16. A mediated agreement will normally include a provision for mediation of disputes that arise in the future, including implementation and modification of the original agreement.
17. Mediation helps improve communication between parties and thereby improves their future relationship.
18. Mediation proceedings are confidential and voluntary for all parties. Mediation typically involves one or more meetings between the disputing parties and the mediator. It may also involve one or more confidential sessions between individual parties and the mediator.
19. Mediation is neither therapy nor a "day in court." Rather, mediation should provide a safe environment for the parties to air their differences and reach a mutually agreeable resolution.
20. Mediators are NOT judges. Their role is to manage the process through which parties resolve their conflict, not to decide how the conflict should be resolved. They do this by assuring the fairness of the mediation process, facilitating communication, and maintaining the balance of power between the parties.

Mediate, Don't Litigate

More people are learning to MEDIATE rather than LITIGATE. Why? It's much faster and cheaper. In this age of budget cuts, courtrooms are overloaded with complex cases that judges simply do not have time to consider. So, rather than spend tens of thousands of dollars to pursue lawsuits that can drag on for years, you can hire a mediator to help resolve your issues, usually in a few weeks, for a fraction of the cost.

Here's the best part: Instead of relying on a judge to issue a final decision that will make everyone sad and poorer, disputants or adversaries can count on a mediator to help them reach an amicable solution and agreement OF THEIR OWN MAKING, which guarantees that it will be much easier for everyone to live with.

Mediation is ideal for those caught in any conflict or disagreement -- whether it's a dispute between landlord/tenant, neighbor/neighbor, merchant/consumer, employer/employee, business partners, family members, or a disagreement over a contract. Issues can pertain to all fields, from real estate and insurance to personal injury and the entertainment industry.

It's not that lawyers are "bad," it's just that they are trained to do their client's bidding, and are being paid top dollar to "come out on top" and prevail at all costs. They are not schooled or professionally inclined to pursue win/win strategies, or solutions that are in the collective best interest. Instead, their reputations rise or fall depending on how effectively they battle the opposing party into submission, and declare victory.

Mediators take a different approach. They are trained and conditioned to seek peaceful forward-looking solutions that everyone can live with. They know that the value of healing far exceeds the price of protracted war and the longterm suffering that results from the pursuit of a one-sided "victory."

Alternative Dispute Resolution

This blog is about how to resolve disagreements peacefully so that both people are reasonably happy with the result, without harming or suing each other. The fancy phrase for this is “alternative dispute resolution.” It doesn’t involve the planet’s two most prevalent ways to settle disputes: violence and litigation. Instead, nobody gets hurt; nobody loses. It does require the disputants themselves to use their own ingenuity and resources to arrive at a solution, and not transfer their power to an authority figure (such as a cop or a judge) to govern their lives for them. The person who helps facilitate this process, enabling warriors to satisfactorily achieve peace without imposing his or her own will on the proceedings, is a neutral third party called a “mediator.”

Unfortunately, we live in a time and place where the first resort of bickering neighbors is to recruit surrogate pugilists and gladiators – threatening to “call the cops” or “tell it to the judge” – rather than work out differences in a sane, non-violent, productive manner. We impulsively retain lawyers, who are trained to zealously advocate for their client, right or wrong, with one goal in mind: to win. The legal arena encourages harassment, bullying, intimidation, threats, and countless maneuvers that are deliberately designed to fan the flames and prolong the conflict (thus escalating the number of billable hours).

Paradoxically, few would reflexively hire a mediator to sort out differences and seek a forward-looking, mutually viable solution – despite the fact that mediation consumes a fraction of the time and cost (not to mention mental anguish and uncertainty) of traditional litigation.

Fighting is a necessary and useful component of real life; differences of opinion are a good thing. So the primary goal of this blog is to teach a new generation how to engage in battle constructively, not destructively. In short, how to fight nicely.