We all encounter disputes in the various aspects of our lives.
Some disputes are minor and involve money, relatives, social arrangements or sports activities.
Many disputes are major and involve our ability to earn a living, keep a family together or seek reimbursement for damages caused to us.
We have become a society engaged in litigation.
Our court systems are clogged by disputes which range from a failure to return a rent deposit to a hospital causing the death of a loved one.
We have become trained to first contact an attorney and file a law suit asking for compensatory and sometimes punitive damages.
Attorneys are stymied by the expense of litigation as they pay the Court system to file litigation and then pay experts and eye witnesses for their testimony by way of personal or video transcribed depositions.
Even when a victor is declared, there is the possibility of long drawn out appeal of the decision of the lower court.
Mediation is a process wherein the parties meet with a mutually selected impartial and neutral person who assists them in the negotiation of their differences,
The Mediator is a well trained and certified expert in guiding negotiations.
Mediation leaves the decision power totally and strictly with the parties.
The mediator does not decide what is “fair” or “right” who is wrong or right and does not assess blame nor render an opinion on the relative chances of success of litigation.
The Mediator acts as a catalyst between opposing parties attempting to bring them together by defining issues and eliminating obstacles standing in the way of meaningful communication and at the same time guides the process in a manner as to avoid confrontation and ill will.
Mediation begins with the filing of a position statement by each party followed by a joint session to set an agenda, define the issues and ascertain the positions or concerns of each party.
This allows the issues to be refined and attacked individually towards a resolution. The Mediator is sworn to confidentiality and cannot be called as a witness or examined in any way in the future.
Only those items which a party chooses to be disclosed will be disclosed by the mediator.
After completing the joint session the mediator will meet each party individually with or without the use of an attorney.
Mediations may be conducted without the retention of counsel.
The individual parties are given an opportunity to explain and enlarge their positions and gives the mediator an opportunity to ask questions which may well serve to create doubt in an advocate’s mind as to the validity of a particular position and alter their thinking as to alternative solutions.
Mediators each have individual charges for their services and may require a retainer to insure at least a one half day of services.
In general the services of a mediator are far less expensive than litigation and the intended result is a written agreement by which all issues are resolved.
Many companies have incorporated agreements to mediate or to arbitrate in their employment contracts and in contracts with companies or individuals for whom they act as service providers.