Using Mediation to Resolve Disputes
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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?
1) Parties have an issue - 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.
2) Joint meeting with mediator - The most common form of mediation beings with the disputants and their 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.
3) Caucus - The joint meeting usually breaks up into two separate, private meetings, referred to as "caucuses."
4) Agreement - Unless the mediation fails, it should ultimately end with a mutual agreement.
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. The mediator's only job is to attempt to move the process along in a fair manner. Ordinarily, the mediator moves between the disputants, helping them consider new possibilities. Though some mediation techniques fail, a successful mediation ends in an agreement that resolves the underlying dispute.
Can a Mediator Decide Who Prevails?
Unlike arbitrators in arbitration, mediators do not decide cases. They have no power to impose a resolution of the dispute on the parties. A mediator can:
- Offer different perspectives
- Help to articulate both party's priorities
- Re-frame the dispute
- Assist the disputants in negotiating a settlement
However, a mediator cannot impose an order on the parties or tell them 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. After the mediation, 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?
While you may choose to mediate without a lawyer being present, it is generally not a good idea. A mediation or alternative dispute resolution lawyer can advise you as to your different options during the mediation. Also, while you, the disputant, ultimately decide what terms you are willing to agree to, you will 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: 07-18-2014 01:25 PM PDT
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