WHAT IS MEDIATION ANYWAY AND WHY WILL IT HELP ME?
By Rosemary A. Macero Attorney and Professional Mediator and Arbitrator
You are in the midst of a disagreement with your neighbor, your condo trustees, your property manager or your family. Every time you try to have a discussion about the topic of the disagreement or problem, it breaks down. Sometimes it results in yelling, sometimes it results in periods where the problem is ignored and seems to worsen. What do you do?
You decide to consult a lawyer. Ouch!! The legal fees are over $150 per hour. You get a free consultation. The lawyer tells you that it will likely cost you at least $3500 for his/her fee plus the expenses of the Court. The lawyer asks what your goal is. You tell the lawyer what you see as your best resolution. The lawyer tells you that the Court can not provide the relief you want and for the most part, you can only get money damages from your successful lawsuit. The case will take time and money. Money, if and when you win, does not really solve your problem. You think that a lawsuit may be the only thing you can do. You ask for a contingent fee in which you pay the lawyer nothing unless the lawyer wins and collects. The lawyer tells you that there is not enough money in it and the lawyer can not take the case on that basis. Do you sue? What about the expense? You are at the end of your rope.
What is mediation anyway and will it solve your problem?
Mediation is a managed discussion between the people involved in the dispute or the problem in which the neutral (mediator) helps the parties to have a constructive and productive discussion about the problems/issues so that the parties to the problem/dispute can find their own solution. It is confidential and can not be used in a court of law against any of the parties. It is voluntary and is based upon all parties’ agreement to participate. It is cost effective and can provide solutions which are not otherwise available through the court process. It can also provide an opportunity for each party to describe their feelings and emotions so that they can be validated and respected in the process.
What is a neutral? The mediation can be conducted with a single or co-mediators. As co-mediators, the mediators work together to manage the process. The mediator(s) have no dog in the fight and no stake in the outcome. The mediator(s0 are individuals that does not take sides but are there to make sure that the mediation process or the discussion provides all the parties with an opportunity to participate and have their position heard.
A managed discussion is the structure that the mediator(s) help to provide. The mediator with the agreement and participation of the parties provides structure to the discussion, so that all parties to the problem or issue can participate in the process, to the degree that each one has a comfort level. This process provides an opportunity for all parties to be heard and acknowledged so that the concerns of each party and the goals of each party can be identified. In other words, everyone has an opportunity to have his/her say, express his/her opinion and identify his/her goal. The object of the mediation is to permit the parties to reach a resolution of the dispute which meets the priorities of the party. Critical to the entire process, is to have the decision-makers present, so that the probability of an agreement can be reached, is preserved.
How does it work? Generally the structure is to have all parties come together and to have an open discussion about the nature of the problem or dispute together so that everyone knows where the others stand. Been there done that? It has been tried and the discussion went nowhere or it deteriorated into yelling or name calling. The role of the mediator in this process is to bring calmness and some formality to the discussion so that all parties feel that they can speak and that they can be heard. Sometimes the mere presence of an independent neutral party, to insure that everyone has a chance to speak can provide a calming and constructive tone to the problem or issue.
After the group session, the mediator will generally separate the parties and speak to each party separately to learn more detail about the nature of the problem or dispute. This provides each party with an opportunity to share additional concerns with the mediator, which concerns the party may not want to express or reveal to the other parties to the discussion. This private session also provides an additional protection of confidentiality such that information which is shared in the private meeting can be kept private if the party requests it. It permits a party to meet with the mediator and potentially to develop the party’s priorities so that the ground work for a resolution can be developed by the parties themselves. The private session permits the party to consider the other parties’ position(s) and the impact that those may have on the process and the outcome. The mediator will usually conduct a private session with each party and then engage to the extent necessary in what is sometimes described as shuttle diplomacy so that the common ground needed for the framework for a solution can be developed.
There is no set pattern to a mediation and therefore, the mediator may determine that the parties would be best engaging in a further group session to design a solution to the problem or issue. The object of the process is to create an atmosphere in which an open and productive atmosphere is fostered to permit the parties to reach an agreement which they themselves can design and live with as a solution to the problem. It is not the mediator imposed agreement but a “design it yourself” or “DIY” solution which best fits the goals and situations of the parties to the dispute.
When the parties reach agreement, the mediator can assist the parties in reducing the agreement to writing so that the solution is confirmed before the mediation concludes. It is important to write it down so that there are no further misunderstandings about the agreement that is reached. Everyone gets a copy. The problem is solved. The solution is of the parties making and not imposed by the mediator or any other official like a judge or an arbitrator.
Do I need a lawyer to mediate? A lawyer is not necessary. A professional mediator can manage the discussion and help the parties to communicate so that the problem can be solved. Of course, parties do bring lawyers on occasion. But a mediation is not a trial and therefore, strictly speaking legal representation is not necessary and sometime can impede the discussion.
What about my rights, am I giving them up to try mediation? The answer is no. The only thing that mediation takes is time and a genuine willingness to attempt to solve the dispute. Mediation can occur at any stage in a dispute. The parties can agree to mediate with or without lawyers early on before the dispute or problem becomes a lawsuit. Because of the lack of knowledge of mediation as a process for dispute resolution, many times, the parties only consider and agree to mediation after the lawsuit has been started. Mediation can be requested or agreed to at any time in the life of the problem or dispute. So in mediation there are no winners and there are no losers. There are only parties who sieze the opportunity to think creatively to resolve a dispute, at a time, in a method and in a manner in which they decide themselves decide. It is not imposed upon them. The parties direct and design the outcome.
If no solution or agreement is reached at that time, the parties have the more traditional forums such as arbitration or the court to decide who wins or loses for them. The parties can try mediation again. Mediation is party driven process where each party controls his/her own fate.
Can I be forced to mediate? The answer is no. However, sometimes lawyers feel differently when the mediation process is proposed by a judge during the pendency of a lawsuit. So while it may feel like the process is being imposed upon the parties, whether the parties after participation in the process are able to resolve the dispute, is left to the parties. The process of last resort is the court process.
What is the difference between mediation and arbitration? Mediation is a process to reach a party designed agreement as to the resolution to the problem. Arbitration is like a private judge. The arbitrator does not help the parties design a solution to the problem, the arbitrator decides the outcome of the problem or dispute as a private judge. The arbitrator is a decision maker and not a facilitator. In mediation, the parties are the decision-makers. The parties decide the outcome of the dispute or problem. The mediator is present to manage or assist the parties in and during the process so that the problems and dispute can be fleshed out and common ground or priorities can be identified.
How do I pick a mediator? Professional mediators are usually trained. The Court has identified a 40 hour training program for mediators to attend to learn mediation skills. A mediator does not have to be an attorney or a judge. In fact, there are many mediators who are not trained as lawyers, who are able and excellent mediators.
What is the cost? The costs vary by the mediator. Lawyers and retired judges can be more costly. There are mediation services that can provide access to mediators who are trained and capable.
Is there any downside? Everyone has to evaluate this question for his/herself. When weighing the costs of lawyers, the length of time that even a minimal lawsuit may take and the fact that it is an all or nothing proposition in which you have no control over the outcome, to be able to avoid these concerns for a cost effective, time effective, outcome over which the parties maintain control, seems to be a no-brainer in terms of giving it a try early on. This is especially true of problems and disputes where there may have to be an ongoing relationship between the parties to the dispute. Where the parties will by necessity or life have to deal with each other in the future, a party designed resolution may present a framework to deal with problems or issues on an ongoing basis. This is particularly true of neighbors, family members, soon to be former spouses, employment situations and numerous others.