About Mediation

What Is Mediation?

Mediation is a process in which the parties select a neutral person (the mediator) to assist them in resolving disputes by helping identify issues, areas of agreement, and creative solutions.  Unlike other forms of dispute resolution, control of the proceedings and the outcome remains completely in the parties' hands.

Mediation should not be confused with arbitration, where a chosen person makes a decision regarding the outcome of a dispute after hearing arguments and evidence.

Nor should mediation be compared to a settlement conference, where a judge uses "shuttle diplomacy" to achieve a compromise that may not satisfy either party.

While mediators' styles may differ, mediation has key elements that set it apart from other approaches to dispute resolution.

  • Mediation is a voluntary process.

Parties to the dispute participate in mediation by mutual consent. They are free to leave at any time if they do not like the way it is proceeding.

Even if you have been “ordered” into mediation, you may not be forced into a resolution with which you disagree.

  • Participants have the power.

The solution to a mediated dispute comes from the parties in stark contrast to litigation, where the outcome is imposed upon parties by a judge, jury, or arbitrator.

In mediation, participants also have the power to shape the process by selecting the mediator, and determining the length of the sessions, who will participate, and whether attorneys will represent the parties.

  • Parties can craft creative solutions.

Legal remedies ordered by a court are usually limited to monetary awards or blocking/ordering actions based on interpretation of the law. In mediation, parties can design agreements that address their feelings, needs, and interests, regardless of legal rights or entitlements.

The quality, form and nature of the solution derived through mediation is limited only by the imagination of participants.

For example, if your neighbor's tree is blocking your view, you may or may not have the legal right to demand the tree be cut. Your neighbors might be interested in mediation, however, if they believe they may benefit from an agreement.

You might propose, for example, that you perform some act that your neighbor desires (such as paying for the repairs to your commonly owned fence) in exchange for your neighbor agreeing to trim the tree. You might further agree that the tree will be trimmed in such a way as to open up your view while maintaining your neighbor's need for privacy.

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  • Mediation is collaborative instead of adversarial.

Rather than focusing on accusations and blame, parties to a mediation are encouraged to work toward a shared goal: Crafting a mutually satisfactory resolution.

One important benefit of working with -- rather than against -- each other is that solutions are usually reached far more quickly and less expensively than through adversarial proceedings.

•  Why Mediation Works

When people are in conflict, they are often unable to hear each other's needs and concerns.

Mediation can provide a safe place where people can speak to each other, express their feelings, and hear what the other is saying. This free flow of communication can allow parties to create solutions that meet each other's needs.

Many techniques used by experienced mediators are borrowed from therapists. Time-honored skills such as empathic listening allow mediators to steer participants toward a resolution.

Mediation is well-suited to highly emotional matters or matters where there is a preexisting relationship, such as neighbor disputes, for a number of reasons: First, unless someone moves, neighbors have to live with each other for a long time. Unlike a divorce -- where spouses split up -- problem neighbors are with you morning, noon and night.

Litigation can make matters far worse; since it's very hard to maintain -- much less repair -- a relationship after you sue.  It can also be prohibitively expensive with no guarantee that the dispute will be resolved.  Finally, many disputes involve needs or interests for which the law does not provide adequate redress.  Going back to the neighbor dispute example, most courts could not do much about a neighbor’s tree shedding leaves on your lawn or his kitchen light shining in your bedroom window.

Because mediation is a cooperative process in which people work together to solve their problems, it can actually help repair a bad relationship.

•  Selecting The Right Mediator

Many people promote themselves as mediators. Some are qualified; others are not.

When selecting a mediator, look for someone who is trained in mediation techniques. Many former judges have become private mediators. But an excellent judge may not be the best mediator. With years of experience settling cases, judges are more familiar with the settlement conference style, in which parties compromise instead of working collaboratively toward a win-win resolution. This approach may not be appropriate for many disputes.

Some areas have community organizations that provide free or low-cost mediation services. Although you can save money by using one of these boards, there are drawbacks: Your mediator is selected for you and may not have qualifications or experience in your particular problem.

It's a good idea to ask prospective mediators what style of mediation they use, what training they have, how they view their role, and whether they have expertise in your type of dispute. Ask for references, and check them out.

Most mediations take place in conference rooms supplied by the mediator. Some disputes, however, lend themselves to on-site mediations. For example, in a dispute concerning  a homeowner's view blocked by her neighbor's trees, it is invaluable to have the mediator, the parties, the lawyers, and tree experts meet at the property; that way, they can work collaboratively to craft a solution that takes into account each tree and its function.

•  It is Never Too Late

If you and the person with whom you are having a disagreement are still on speaking terms, suggest mediation and explain its benefits.

If you are not, send a letter proposing mediation.  Enclose articles, such as this, explaining the process and its benefits.  Consider enlisting a mediator to contact the other side.  In some instances, you may want to have an attorney contact the other side to propose mediation.  Often, people will not take matters seriously until they are confronted with legal letterhead. 

As a last resort, litigation can be a powerful tool to bring people to the table.  However, litigation can be costly, risky, disruptive and draining. Pursue it only if all other efforts at resolution fail. Even if you sue or are sued, it is never too late to pursue mediation; just make sure you are represented by an attorney experienced in and comfortable with the mediation process.

Bonapart Resolution Growing Peace Since 1996

Shelterpoint Business Center

591 Redwood Highway, Suite 2310
Mill Valley, CA 94941
Ph: 415-332-3313   Fax: 415-332-4603 

Email: info@treelaw.com 

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