What Are the Benefits of Mediation?
While mediation cannot guarantee specific results, mediation generally produces or promotes:
A Financial Advantage
Mediation is generally significantly less expensive when contrasted to the expense of litigation or other forms of dispute resolution.
Timely Settlements
It may take as long as a year to get a court date and multiple years if a case is appealed, thus Mediation often provides a more efficient way of resolving disputes as they are relatively easy to schedule. There are generally no court dockets to work around or deadlines to meet.
Mutually Satisfactory Resolutions
Parties are generally more satisfied with solutions that have been mutually agreed upon, as opposed to solutions that are imposed by a third-party decision maker such as an arbitrator or judge.
Increased Compliance
Parties who have customized their own agreement in mediation are also generally more likely to comply with its terms as opposed to those whose resolution has been imposed by a third-party decision maker.
Inclusive and Customized Agreements
Mediated settlements can address both legal and non-legal issues. Mediated agreements often cover procedural and psychological issues that are not necessarily considered relevant by legal determination. The parties can customize their settlement to their particular situation.
Increased Control and Predictability of Resolution
Parties who negotiate their own settlements have more control over the outcome of their dispute. Gains and losses are more predictable in a mediated settlement than they would be if a case is arbitrated or adjudicated.
Personal Empowerment
People who negotiate their own settlements often feel more powerful than those who use surrogate advocates, such as lawyers, to represent them. Mediation negotiations can provide a forum for learning about and exercising personal power or influence.
Preservation of Relationships or Amicable Termination of Relationships
Many disputes occur in the context of relationships that will continue into the future. A mediated settlement that addresses all parties' interests can often preserve a working relationship in ways that would not be possible in a win/lose decision-making procedure. Mediation can also make the termination of a relationship more amicable.
Customized Resolutions
Parties who mediate their differences are able to bring light to the fine details of implementation. Negotiated or mediated agreements can include specially tailored procedures for how the decisions will be carried out. This option often enhances the likelihood that parties will comply with the terms of the settlement.
No Simple Compromises or Win/Lose Outcomes
Interest-based mediated negotiations can result in settlements that are more satisfactory to all parties than simple compromise decisions or the outcomes where there is only one winner.
What is the role of the mediator?
The role of the Mediator is to assist parties in reaching their own agreement. In serving this ultimate end, the mediator may take on any or all of the following roles:
Coordinator
The mediator may assist in contacting the other party to arrange for an introductory meeting.
Educator
The mediator educates the parties about the mediation process, other conflict resolution alternatives, issues that are typically addressed, options that may be considered, research, court standards, etc.
Communication Facilitator
The mediator seeks to ensure that each party is fully heard in the mediation process.
Translator
When necessary, the mediator can help by rephrasing or reframing communications so that they are better understood and received by all parties.
Questioner and Clarifier
The mediator probes issues and confirms understandings to ensure that the participants and the mediator have a full understanding.
Process Advisor
The mediator suggests procedures for making progress in mediation discussions, which may include caucus meetings, consultation with outside legal counsel, and consultation with substantive experts.
Catalyst
By offering options for consideration, introducing new perspectives, and offering reference points for consideration, the mediator serves to assist the parties in reaching agreement.
Manager of Process
The mediator manages and keeps track of all necessary information, writes up the parties' agreement, and may ultimately assist the parties in implementing their agreement.
What is Collaborative Law?
The essence of "Collaborative Law" is the shared belief of the participants that it is in the best interests of parties to commit themselves to resolving their differences with minimal conflict and no litigation. They seek to adopt a conflict resolution process that does not rely on a Court imposed resolution. The process does rely, however, on an atmosphere of honesty, cooperation, integrity, and professionalism geared toward the future well-being of the parties.
The Adversary System
Law school training and the real world attorney work experience combine in a well established and powerful institutionalization of the adversarial-representative model of conflict resolution. The daily grist of the litigator's mill is the stress and frustration of trying to achieve the client's objectives against the impediments and opposition of the parties on the other side of the case.
The costs of this process are usually observed as being outrageously high. This model is ill-suited for the purposes of resolving family law conflicts. Rather than assuming the conflict must adapt to the traditional adversarial litigation model, the collaborative approach is based on the idea that the process should adapt to the actual needs of the parties in conflict for reaching agreement. In the traditional competitive approach, where the parties objectives or strategies collide, it is assumed that the only way to move past, through, around, or over the opposition is to employ the power of law-based procedures to make something happen.
In the face of opposition from the other side, a lawyer looks to the power of the process and often overlooks the profound impact that process will have on the daily lives of the clients and their children. This power-based, competitive approach nurtures continued resistance as the participants have little or no reason to view the other side as anything but a threat and something to fear.
Collaborative Negotiating
The collaborative approach is both pragmatic and grounded in its focus on the needs of the parties. Those needs fall into two categories: process needs and outcome needs. The process needs are determined by accepting the party in the emotional state in which they enter the process. That person may be experiencing a wide range of emotions such as: anger, hurt, distrust, bitterness, guilt, and grief. These emotions may come with a wide range of personality characteristics. A good process begins by accepting the participant as who he or she is at the outset. The outcome needs describe the desired goals and objectives of the parties which will allow them to feel that the issues are resolved. As we will see, these outcome needs are developed by analyzing the interests of the party and moving beyond the stated positions which have sustained the conflict.
The core of the collaborative process is to facilitate the making of agreements. To be effective in this role, it is necessary to make a mental shift in the mindset that one brings to viewing both the nature of the conflict and the elements inherent in the personalities, characteristics, and resources of the parties.
More resources on the Mediation Process:
www.mediate.com/about
www.mediate.com/resolution.cfm
www.mediate.com/articles