The Mediation Advantage
Mediation can often offer a better form of dispute resolution than litigation or arbitration. Most disputes result from poor communication. Mediation is an opportunity to communicate better — to be fully heard, to present your story, and to search for mutually satisfactory solutions. In mediation, people often communicate more effectively with one another than in arbitration or court
Another advantage of mediation is that innovative solutions to a problem may be explored. You can create your own solutions rather than have a judge or arbitrator impose a decision on you. Thus, you maintain the power to decide rather than have someone else decide for you
The outcome of mediation generally produces more satisfaction and compliance among its participants than those who use litigation.
What Is Mediation?
Mediation brings people in conflict together with a neutral third person who assists them in reaching a voluntary agreement. The mediator helps them clarify the issues, consider options, and reach a workable settlement that fits their needs.
Here’s a classic example of how mediation works. The kitchen has one orange, and two cooks need it. One cook wants orange juice for a fruit drink and the other needs orange rind for cake icing. The mediator helps them discover their real interests (orange juice and orange rind) as opposed to their stated needs (the orange). The problem can be reframed into “who gets the orange at what time.” If the second cook gets the orange after the juice has been squeezed out, both can satisfy their real interests.
What Are the Advantages to Mediation?
- You get to decide: The responsibility and authority for coming to an agreement remain with the people who have the conflict. The dispute is viewed as a problem to be solved. The mediator doesn’t make the decisions, and you don’t need to “take your chances” in the courtroom. Many individuals prefer making their own choices when there are complex tradeoffs, rather than giving that power to a judge. You need to understand your legal rights so that you can make decisions that are in your own best interests.
- The focus is on needs and interests: Mediation examines the underlying causes of the problem and looks at what solutions best suit your unique needs and satisfy your interests. allows the parties to revise and adjust the scope of their conflict. In a trial, initial pleadings and rules of procedure limit the issues which a party can raise. In mediation, as circumstances change so can the topics up for discussion. This increased flexibility makes it easier for negotiators to act as problem-solvers instead of adversaries.
- For a continuing relationship: Neighbors, divorcing parents, supervisors and their employees, business partners, and family members have to continue to deal with each other cooperatively. Going to court can divide people and increase hostility. Mediation looks to the future. It helps end the problem, not the relationship.
- Mediation deals with feelings: Each person is encouraged to tell his own story in his own way. Acknowledging emotions promotes movement towards settlement. Discussing both legal and personal issues can help you develop a new understanding of yourself and the other person.
- Higher satisfaction: Participants in mediation report higher satisfaction rates than people who go to court. Because of their active involvement, they have a higher commitment to upholding the settlement than people who have a judge decide for them. Mediations end in agreement 70 to 80% of the time and have high rates of compliance.
- Informality: Mediation can be a less intimidating process than going to court. Since there are no strict rules of procedure, this flexibility allows the people involved to find the best path to agreement. Mediation can deal with multiple parties and a variety of issues at one time. In family mediation, for example, two children, Mom, Dad and Grandma might be involved. They may need to talk about chores, school performance, curfew, allowances, discipline, and the use of the kitchen.
- Faster than going to court: Years may pass before a case comes to trial, while a mediated agreement may be obtained in a couple of hours or in sessions over a few weeks. Mediation is relatively simple. There are no complex procedural or evidentiary rules which must be followed. While most would agree that a general rule of fairness applies, the maximum penalty a party can impose for foul play is to walk away from the mediation and take his chances in court.
- Lower cost: The court process is expensive, and costs can exceed benefits. It may be more important to apply that money to solving the problem, to repairing damages, or to paying someone back. Mediation services are available at low cost for some types of cases. If you can’t agree, other legal options are still possible. Even a partial settlement can lessen later litigation fees.
- Privacy: Unlike most court cases, which are matters of public record, most mediations are confidential.
- Mediation is relatively inexpensive: Seeing a case through trial is an expensive proposition.
In What Cases Might Mediation Be Used?
- Business: Collective bargaining between labor unions and management is one of the most familiar models of mediation. Workplace disputes between business partners, co-workers, or supervisor and employee can be mediated to correct particular problems and continue productive relationships. Contract disagreements, insurance claims, real estate disputes, construction conflicts, and cases between landlord and tenant, consumer and merchant, and farmer and lender are common.
- Personal Injury: If you have reached an impasse with the insurance adjuster negotiating your personal injury claim, consider mediation as a way to break the stalemate. Mediation allows you to sit in the same room with the adjuster, who may be more likely to give you a reasonable settlement when sitting across a table from you than if you remain merely a set of claim documents and a voice on the phone. Mediation also gets the adjuster to put special effort into your claim, which increases the likelihood that the adjuster will try hard to settle the matter. And you get a third person — the mediator — to encourage a break in the deadlock.
- Community: Representatives of interest groups, businesses, and several layers of government can come together to negotiate agreements on public policy development. Cases concerning the environment, land use planning, parking, zoning, and nuisance complaints are often mediated.
- Small Claims: Civil cases involving smaller amounts of money or neighborhood disagreements are often sent to mediation.
- Divorce and Child Custody: Mediation offers a couple the chance to define what is most workable for their particular situation and to tailor an agreement that reflects their own circumstances. It can enable future joint decision-making. Visitation, property division, alimony, and unique circumstances such as relations with grandparents or stepfamilies can be included. Child custody disputes are automatically sent to mediation in some jurisdictions. Custody and visitation issues are evaluated in terms of the child’s best interests and the parents’ shared concerns. The privacy of mediation can make it easier for people to discuss emotional matters.
- Interpersonal: Arguments between individuals may not necessarily involve a legal claim. Roommate and family conflicts are often well-served by mediation.
- School or University: Students from elementary school to college have been taught to successfully mediate disputes among their peers. Courts in Florida and California refer some truancy and disciplinary cases to mediation between parents, students and school personnel. Some school districts mediate controversies with parents of handicapped students over their plans for meeting the child’s educational needs.
- Criminal: Mediation of minor non-violent crimes can help unclog the courts and bring about restitution. Direct communication between victim and offender can be beneficial to both, and can make it easier to deal with the defendant in the future. Cases often go to mediation after the person has been found guilty of the crime. Vandalism, passing bad checks, theft, and juvenile cases are the sorts sent to mediation.
For more information on Mediation visit:
American Bar Association
To schedule an appointment with Arther Schneider to discuss the option of Mediation, please call 240-527-6406 or click here.