Effective Use of Mediation
Definition.
A private, informal dispute resolution process in which a neutral third person, the mediator, helps parties discuss disputes and reach an agreements. The mediator has no power to impose a decision on the parties. The mediator helps the parties identify interests rather than positions. The mediator helps the parties identify options that meet both parties’ interests. The process is confidential. Nothing said in mediation, nor any documents that are prepared for mediation, may be disclosed to the court unless there is a settlement. Parties may settle their case in one short session, or may return to the mediator many times, until the case is settled.
Negotiating interests, not positions, is the key to mediation.
The key to mediation is moving the discussion from the parties’ expressed positions to the interests underlying those positions, which are often not expressed. In this way, negotiating is not a process of moving to a compromised middle position that neither party wants. Instead, it is an attempt to identify options that meet both parties’ true interests so that a settlement can truly satisfy both parties.
Best result by identifying both interests: A return time that allows for both interests.
Facilitative and Evaluative Mediation – Two Approaches
Simply put, a “facilitative mediator” works hard to help the parties identify their own interests and solutions. The mediator simply “facilitates” the parties’ communication. The “evaluative mediator” acts as “evaluator” of the positions being expressed by the parties and actively seeks and suggests settlement positions. No mediator works exclusively in one mode.
a. Meditation is required in many cases by rule, statute, or contract. Most parenting plans require mediation so that cases do not return to court unless parenst have tried hard to resolve disputes outside of court.
b. Mediation has the potential to provide the best and longest lasting resolution for parties. This is true when the mediated settlement is not just the end of litigation, but instead is a true resolution that meets both parties’ needs.
c. Mediation is less costly than litigation, emotionally and financially.
What to do to prepare for mediation.
a. Identify your positions and underlying interests regarding unresolved issues. Become educated about realistic expectations. If youra are not realistic, change them.
b. Attempt to identify the other party’s positions and interests regarding unresolved issues.
c. Identify areas of likely agreement by identifying options that you think would meet both parties’ interests.
d. Prepare to listen patiently to the other party’s positions and interests.
e. Prepare to change your positions based on agreement about interests.
f. Talk to an attorney about the most likely alternative to settlement. This is a frank assessment of risks that must include attorney’s fees and other litigation expenses and the emotional costs of litigating.
