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. 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.
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.
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.
“...your conduct both prior to and during the mediation was clearly a breath of fresh air in dealing with mediators...I look forward to the next case in which you can mediate for one of my clients.”