A Case for Mediation (as published in Huffington Post May 13, 2015)
A multimillion-dollar lawsuit, three years of aggravation and an ulcer to boot.
Everyone wants to feel heard, and, particularly in conflict - when emotions are often inflamed - it's easy for understanding to be compromised and agreement to seem impossible. Mediation, a form of alternative dispute resolution, can remedy that. As a mediator, I have experienced discernible moments when the energy in the room shifts, where tensions and hostilities palpably begin to dissipate as parties move forward onto a path to settling their differences. Mediation's a highly effective alternative to long, drawn-out lawsuits that saves both time and money; it also can help mitigate stress, business and reputational risk and, not in the least, strained relationships. In fact, the benefits of mediation have been long embraced by bar associations, law schools as well as by our inundated local, state and federal courts.
Mediation is a voluntary process in which a skilled, impartial third-party - the mediator - helps facilitate a conversation between parties in dispute who have been unable to negotiate a resolution on their own. The mediator acts neither as judge, decision-maker or problem-solver. Guided by mediation's fundamental principles of neutrality and confidentiality, the mediator creates a safe space, generally with some ground rules, in which parties are encouraged to speak openly. Parties have the option of having their legal counsel participate in the process. Both in joint sessions and individual, confidential "caucuses," the mediator utilizes various understanding-building techniques and strategies to help break through positional barriers so as to uncover underlying needs and interests. As most mediators agree, it's never just about the money; it's often about the relationship.
The beauty of mediation is that it empowers parties to explore creative options for resolution and settle their dispute on their own terms, rather than face the uncertain outcome of a court's decision. While court decisions are generally defined in terms of win-lose, parties in mediation are afforded the opportunity to negotiate a mutually acceptable agreement. The ownership the parties take in the mediation process enhances the likelihood of their commitment to the process. As parties move closer to settlement, the mediator can help each (in confidential caucus) assess the strengths and weaknesses of its case, facilitate risk analysis and, as needed, will assume the role of "agent of reality." Settlements are binding and are generally drafted by parties' counsel.
Types of mediation other than the more traditional "facilitative" style are the "evaluative," whereby a mediator can express an opinion and may even propose a basis for settlement; "transformative" mediation, more focused on the relationship; and the "mandatory" initial mediation as ordered by some courts.
Conflict is an inevitable part of life. That doesn't mean it needs to drain the life out of us. If we find ourselves stuck in what appears to be an unresolvable dispute, it's good to know mediation's a great alternative to litigation.
Mallory J. Stevens is a certified mediator in private practice in NYC.