Mediation / Arbitration
What is Mediation?
Mediation is a non-adversarial process for resolving disputes. It is an alternative to going to trial, and is particularly useful if the parties to the dispute want to carry on a relationship in the future. An impartial person, called a mediator, assists the parties in identifying common goals and interests. With the identification of common interests or concerns, the parties can begin to find areas in which they can come together. Agreement on small issues often leads to agreement on larger issues. The key to the mediation process is that the parties are communicating and making their own decisions -- there is no judge or other third party to make the decisions. The mediators are present only to help the parties communicate their ideas, and to offer options which will minimize the possibility of future disputes.
Mediation is appropriate when both parties agree to use the process to resolve their differences. A good example are parents who are divorcing and who want to discuss a parenting plan for their children. Mediation is not appropriate when there is a significant imbalance of power between the parties. This imbalance can be caused by one party having significantly more money or resources than the other, or when recent abuse has occurred in the relationship.
Almost any sort of dispute can be mediated, if both parties agree to discuss the issues. Commonly mediated disputes include divorce issues such as child custody, visitation, support and property division; landlord/tenant issues and neighborhood disputes. In the situation where a divorce is being mediated, then it is mandatory that the case be mediated whether there are child custody issues or not. The mediation process must start within 180 days of the filing of the divorce. In recent years, major corporations and insurance companies have begun to use mediation as an alternative resolution process in all kinds of cases.
The mediation process itself is structured so that persons unfamiliar with the process will quickly be made comfortable. An explanation of the process is given, and ground rules are set forth. One of the ground rules states that each party must give the other time to speak without interruption. This guarantees that both parties will have equal time to tell their side of the story. The parties are told that the process is confidential, and that full disclosure is necessary for the parties to reach an agreement. All notes taken during the mediation are confidential and cannot be used at trial later. If the parties agree to the ground rules, an agreement to mediate is signed. Each party is asked what he/she would like to see resolved during the process. Both parties then have the opportunity to tell their side of the story, and their feelings about the situation. The parties then begin to work through those issues they want to resolve. While the parties are negotiating, the mediators take notes, and reframe statements to ensure that both parties understand each statement as it is made. The mediator's goal is to help the parties realize their mutual interests and assist them in determining ways to work together.
If it becomes apparent that the process is not working, it can be terminated by the mediators or by the parties at any time. The parties are free to return to court or to try another means of dispute resolution.
Mediation is generally less costly than going through the court process, and disputes are often resolved more quickly. Although mediators assist clients through the process, it is advised that an attorney be involved from the beginning of the case to review the proposed agreement and to file the completed agreement with the court, if necessary. Mediators cannot give legal advice, and in many cases, during the course of the process, it is necessary to request legal advice. It may become necessary for other professionals, such as financial planners, to become involved. When this situation arises, the mediator will request that the clients consult with their experts and return with the appropriate documentation so that full disclosure can be made. Disclosure of all information is necessary to develop a fair and long lasting agreement.