What Can Mediation Do For You?
Disputes and conflicts between people arise all the time: someone buys a product that doesn’t meet her expectations. An employee feels mistreated by his employer. Members of a family business have trouble agreeing on business strategies and roles. One party to a contract believes that the other didn’t perform his obligations. Someone is injured and believes that someone else is at fault. The list could be infinite.
How do we resolve these conflicts and disputes?
Sometimes we don’t—they either fester or are ignored as if they didn’t exist; the aggrieved party decides the harm isn’t worth the time, money or aggravation to pursue a remedy. Sometimes the parties are able to work out a resolution by themselves.
Otherwise, if the parties want to resolve their conflict, they need the help of a third party. If the conflict is one that gives rise to legal claims (as so many do), the parties can go to court and have a judge decide. Or they can go to an arbitrator (essentially a private judge) and have him decide. A judge or arbitrator will pick a winner, based on the evidence she hears.
WHAT IS MEDIATION?
Mediation is an alternative to all of these. In mediation, an impartial person, a mediator, helps the parties reach a mutually satisfactory settlement of their dispute. The mediator does not decide anything—each party makes its own decision regarding whether any particular settlement result is acceptable. The mediator’s job is to facilitate communication and assist the parties in exploring alternative ways of settling the conflict that meets their needs and satisfies their interests. Although the process can vary depending on the situation and the relationship of the parties, typically the mediator will meet with the parties and their counsel together and then caucus with each separately in order to promote negotiations and attainment of a satisfactory settlement. A mediation can often be completed in one day.
A mediator can also help settle disputes between parties—such as conflicts between members of a family business—where the alternative may not be litigation or arbitration, but where those parties’ livelihood and well-being may depend on resolution of the conflict.
WHY MEDIATION?
Mediation offers both parties a number of significant benefits.
Choice. Mediation is an entirely voluntary process. The parties choose to participate, and any agreement they reach is their own. No one imposes a solution on anyone.
Control. In mediation, the parties control the outcome—the mediator simply helps them engage in active negotiation to reach a conclusion. Conversely, when a dispute goes to court or into arbitration, a judge, jury or arbitrator imposes a decision on the parties, over which the parties have no control.
Certainty. Since the parties develop their own settlement and agree to it, they are not faced with the uncertain outcome of litigation or arbitration.
Creative alternatives. A mediator works with both parties to consider alternatives and find creative solutions that resolve a dispute. In contrast, judges, juries and arbitrators make decisions based on the facts presented to them, the law, and the remedies that the law makes available. That decision will, by necessity, preclude other solutions which a mediated voluntary settlement could have produced that may have better satisfied the interests and needs of both parties.
Confidentiality. The mediation process is entirely confidential. Not only is anything that is said or done at the mediation legally protected from disclosure, but also the mere fact of the existence of the dispute and its resolution can be insulated from public view. Litigation, of course, is conducted in a public courtroom.
Preservation of relationships. The confidential mediation process provides an opportunity for the parties to be candid and forthright with each other. The underlying emotions that every conflict involves can be given voice and will be heard by all parties. Often, that process leads to a reconciliation that reaches beyond the issues that would be raised in a courtroom or arbitration. Furthermore, since settlement occurs only because both parties voluntarily agree to it, the pre-existing business, personal or other relationships between the parties can often be preserved or even enhanced.
Cost. Compared to the cost of litigation, the cost of mediation is typically minute. Instead of the massive amounts that can be spent on motions, discovery, pre-trial preparations and trial, early mediation can produce a settlement for, typically, a day or two of mediator’s time and the time of the parties and, if involved, their counsel. The costs of arbitration can vary enormously, but since any attorneys involved still must try the case to the arbitrator, the costs of pre-trial preparation and trial still must be incurred.
Finality. A settlement reached through mediation means that the parties need not suffer through the months or even years of protracted litigation. Instead of being embroiled in the litigation process, with its attendant stress and diversion from other activities, the parties can put the conflict behind them and spend their time in more productive and satisfying ways.
The majority of mediations result in a voluntary settlement of the conflict. If the parties are unable to reach agreement, litigation and arbitration remain available to them. Whatever is said or done at the mediation cannot be used as evidence in any of those subsequent proceedings. Accordingly, the parties can be open and candid with each other and with the mediator without concern that their words can be turned against them.
