Mediation can look different based on the dispute, the desired outcome and the mediator...
Mediation as an Alternative for Dispute Resolution
Alternative to ..??
long term damage to relationships
litigation - arbitration
high financial, emotional and stress, costs
lack of productivity
Mediation can be used to resolve conflict, disputes or even to promote better communication by including a qualified, non-biased 3rd party.
What is the mediators role?
A good mediator will be familiar with your type of dispute. It doesn't make sense to choose a mediator that typically handles divorce cases when you really need a mediator who knows family estate laws.
There are different styles of mediation. Some mediators practice a more 'behind the lines' approach to allow the parties to manage the issues themselves with little input from the mediator. Other mediators may practice a more active approach by asking a lot of questions of the participants in order to reveal details that might otherwise not be revealed. Consider what style of mediation you feel would work best for your situation and ask the mediator what their style is prior to selecting them for your mediation.
Regardless of mediation style, your mediator should be competent in establishing and maintaining an environment conducive to all parties.
Keep in mind a mediators role is not to hear the 'sides' and make a decision for them, but rather to seek to expose all facts, information and alternate perspectives so participants can ultimately create and agree to their own negotiated resolution agreement.
If I mediate, do I have to agree to compromise?
There is a well known saying about what makes a good mediation:
Coming to mediation expecting to 'win' everything you want is probably not the right approach. If one party gets everything they want, something may have happened during the negotiation to end with such an un-compromised agreement.
Mediation is intended to guide parties on what is most important to them so they can then create a compromise that works for everyone. Because mediation by design is VOLUNTARY, participants always have the choice to make compromises they may not want to make, but can see that compromising on certain things may work out better for them in the end. Most people choose mediation because they do not want to give up their ability to be part of the resolution agreement, rather than taking the risk of allowing a judge, jury or arbitrator to make the final decisions for them.
When is the best time to mediate?
Parties in conflict can choose mediation any time they deem it appropriate, however if parties can agree to mediate prior to filing a lawsuit it my prove to save a lot of time, stress and money.
Can attorneys be involved with mediation?
Yes. In fact, it is quite common for attorneys to suggest that mediation may be the best option.
Attorneys can be a great asset to mediation by advising their client of best / worse case options for them. If you already have an attorney you may want to discuss the option to mediate. You should always ask your mediator if they allow attorneys to participate in the mediation. Some mediators may not, while others may only allow attorneys if all sides are represented.
Is a settlement agreement considered legal and binding?
Yes. If the mediation results in a settlement agreement, participants may choose to have the agreement reviewed by their own counsel prior to signing.
In California, a mediated settlement agreement signed by all parties... is a legally binding contract.
"you know you have had a good mediation when both parties walk away feeling like they lost"
Pro's & Con's
parties negotiate their own agreement
costs far less than litigation
often resolved in first meeting
less damage to personal relationships
someone else makes final decsions
can easily be in the thousands
can take months or possibly years
public, anyone can hear details
personal relationships are not a concern