MEDIATION
Reaching your goal as painless as possible
You have undoubtedly already heard of mediation in that you have searched the web and found this page on my website. You are therefore probably exploring ways to resolve a dispute without going to court.
Mediation is an effective way of settling disputes out of court. Virtually every kind of dispute can be mediated, whether commercial (construction, home renovation, copyright issues, etc.) or family-related (divorce, custody, probate, etc.). In mediation, both sides come to the negotiating table, literally and figuratively. Guided by a trained, experienced mediator, the process ends in an out-of-court settlement. Since all parties participate in the mediation, and all parties agree to the result, all parties are highly motivated (and contractually bound) to follow through on their own agreement.
What is mediation, and how does it differ from litigation?
The Three C's of Mediation: Confidentiality, Cooperation, and Cost-Effectiveness
Confidentiality
Mediation is confidential. Before beginning the mediation, the parties sign a brief statement in which they agree that their discussions and negotiations are confidential. Statements made and information exchanged (if any) during mediation cannot be used for any other purpose, including litigation. The mediator cannot be subpoenaed to testify in court if the mediation fails, nor can her or his notes be subpoenaed.
Confidentiality frees the parties up to come more quickly and more easily to an agreement. There are no rules that keep evidence out. Ideas flow, possible solutions or offers are put on the table, and -- in contrast to a courtroom setting -- the parties' words are not recorded. Their offers or statements, being confidential, cannot be alluded to later, and cannot be held against them.
Cooperation
Successful mediation requires the cooperation of all parties to work toward a resolution of their differences. Ideally, all sides will leave mediation without having won everything they wished for before starting mediation. Nor will they have lost everything. They have cooperated with each other and with the mediator to work hard toward a common goal: out-of-court settlement.
By definition, all parties will be reasonably satisfied with the outcome, since they themselves have shaped that outcome. Mediation requires the parties' cooperation to see where they can give up or soften a hardened position, with the understanding that the other party is likewise cooperating in giving up or softening its hardened position. There is a give-and-take, and a willingness to listen to the other side (which never occurs in litigation). Ideally, the parties thereby begin to understand the other side's position, and either come up with new solutions or structure the settlement so both parties are reasonably satisfied.
Emotions can at times run high when parties are disputing the breakup and distribution of their business, their divorce, their inheritance, the custody of their children. As a mediator I allow some venting -- enough to enable the parties to understand the often long-seething resentments that have caused the disagreement and thereby clear the air. However, the parties are committed to cooperate in listening to the other side and stopping their exposition of facts as they see them when the mediator so indicates.
Cost-Effectiveness
Mediation is cost-effective, and much less expensive than litigation. The parties pay the mediator by the hour. In many cases the parties split the cost of mediation 50-50, although at times one party will pay. The mediator is paid at the end of each session. How many sessions are required is dependent on the parties themselves. In no event do the costs of mediation come anywhere close to the cost of litigation -- not just financially, but also emotionally.
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Mediation should always be explored before resorting to litigation. Aside from the advantages discussed above, the additional benefit of mediation is that all parties are able to leave the process on speaking terms -- even if they were not on speaking terms prior to starting mediation. At its very best, sitting around a table with a mediator guiding the process can re-establish business relationships, and can enable divorcing parties to deal with each other regarding their property and/or children in a spirit of continuing cooperation.