Family Law Newsletter- Understanding Mediation
Jan. 9, 2020
Mediation, which can be described as "assisted negotiation," is the fastest growing Alternative Dispute Resolution (ADR) method. Courts in many jurisdictions now require that disputes be mediated before they will be heard in court. Mediation differs from arbitration; in mediation, the parties create their own settlement terms with the assistance of a neutral mediator. The mediator's job is to keep the parties conversing about their issues and to move them toward an agreement. To accomplish this, the mediator engages in discussions with both parties to identify the core issues and possible options to solve those issues. At the same time, the mediator tries to obtain an agreement on minor issues to move the discussion forward. The mediator may propose various settlement options or suggestions when appropriate. Lawyers do not have to be present during mediation. However, they may be a part of this process, they can point out the risks of the various settlement proposals and help the parties focus their energies on solutions that best meet their legal needs. Mediation is not binding unless the parties reach an agreement and the agreement is approved by the court.
The key qualities of the mediation process are its voluntary nature (the parties can leave at any time for any reason), collaborative approach, an element of control (no decision can be imposed without the parties' consent), confidentiality and impartiality. Based on having resolved their own conflict, the parties may achieve greater satisfaction, which in turn leads to a greater likelihood of compliance with the decision.
The selection of a mediator will depend on the dispute and the parties' personalities. A mediator must be a good listener and a creative problem-solver. A mediator will also identify and clearly articulate the parties' fundamental underlying interests and help the parties over the emotional roadblocks to resolution. The mediator must also have sufficient experience, qualifications, and certifications in order to be hired for mediation.
The success of mediation will depend on the attitudes of the participants. If the parties think of mediation as a means to achieve a tactical advantage, such as causing a delay in the resolution process, an agreement will be unlikely. On the other hand, for parties that enter into mediation in a good-faith attempt to air their grievances and reach a compromise, the process holds great promise. It is essential, however, that the parties move beyond the personalities and emotions involved in mediation is to be successful.
If parties have attempted to negotiate a settlement with each other but have failed, mediation may be the most efficient next step in the resolution process. It is particularly appropriate when the parties wish to remain on good terms with each other since mediation avoids much of the hostility that may be present during litigation. Mediation is often fast and economical, and it can be customized to meet individual needs. However, mediation may not be the best option for everyone, and maybe inappropriate in some cases. It is important to discuss mediation with your attorney and determine if it is a suitable option for you.
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