Using Mediation to Resolve Disputes
What Is Mediation?
Mediation is often used between disputing parties over civil matters such as divorce. It is a non-binding process in which a neutral person (i.e. the mediator) facilitates communication between disputants to assist them in reaching a mutually acceptable decision.
How Does A Typical Mediation Proceed?
As with arbitration, the mediation process starts when one party informs the other of the existence of a controversy. After failing to reach a settlement through private negotiation, the parties agree to meet with a mediator in an effort to reach settlement. The most common form of mediation beings with the disputants and their lawyers (if they are using lawyers) meeting with the mediator for an opening session. The mediator explains the process she plans to use and what is expected of everyone. The disputants then tell their side of the dispute and the mediator asks questions to be sure she understands. The joint meeting usually breaks up into two separate meetings, referred to as caucuses.
What Happens During The Caucuses?
During the caucuses, the mediator talks to each side in an attempt to learn what is motivating the dispute, clarify the underlying issues, and determine where there are areas for movement from established positions. The mediator may ask more penetrating questions than in the joint session, since what goes on in caucus is confidential and not conveyed to the other side.
What Are Some Other Common Techniques Used By Mediators To Resolve A Dispute?
Mediators may try offering different proposals to each side to see what the response might be. The disputants do not have to take responsibility for any position the mediator is trying out, because it is not their position - only a mediator's attempt at moving the process along. Ordinarily, the mediator moves between the disputants, helping them invent new possibilities, trying out ideas, and narrowing the differences between them. Though some mediations fail, a successful mediation ends in an agreement that resolves the underlying dispute.
Can A Mediator Decide Who Wins?
Unlike arbitrators in arbitration, mediators do not decide cases. They have no power to impose a resolution of the dispute on the parties. They can offer different perspectives, help to articulate both party's priorities, re-frame the dispute, and assist the disputants in negotiating a settlement, but they cannot tell the parties what to agree to.
If An Agreement Is Reached In Mediation, Is There A Way To Enforce It?
At the end of a successful mediation, the lawyers for the disputants or the mediator will typically draw up an agreement that embodies all the main points of what has been agreed to. Both parties will sign this agreement and the dispute is ended. Afterwards, the lawyers may draw up a more formal document that can be filed with a court when dismissing the case. If no case has been filed, the lawyers will draw up a contract that binds both parties.
Do I Need A Lawyer To Assist With Mediation?
While you may choose to mediate without a lawyer being present, it is generally not a good idea. A lawyer can advise you as to your different options during the mediation. Also, while you, the disputant, decide what terms you are willing to agree to, you'll benefit from the lawyer's advice and experience, and also have the benefit of his explanation of the legal consequences of any proposed agreement.
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Last Modified: 08-30-2010 04:40 PM PDT
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