By: Stephen P. Lagoy
Mediation may be defined most simply as facilitated negotiation. Unlike litigation and arbitration, mediation does NOT involve a decision maker nor are there formal proofs or arguments. Its goals include avoiding or breaking impasses, diffusing controversy, and encouraging parties to generate settlement options. These goals are foreign to the adversarial environment in which many lawyers live their professional lives. The mediator, who is usually selected by the parties, functions as a catalyst, rather than adjudicator. The mediator focuses on the parties’ interests rather than the conflict and the positions they have taken. Often, the mediator’s most critical function is to assist the parties in determining their real values and interests.
Mediation has many advantages over litigation. Mediation can reduce the time and expense of dispute resolution. It can also reduce the emotional toll of litigation because the parties have more control over the process. In contrast to that uncomfortable feeling that comes from placing your fate in the hands of total strangers (typically a judge or jury), the parties in mediation are in control. They typically choose the mediator, when and where the mediation will take place, and how long the mediation will last. The parties also have control over the outcome. There is no settlement unless all parties agree, thereby reducing outcome uncertainty. Mediation also helps to improve communications between and among the parties. The process may also mitigate tensions, build understanding and trust, and avoid the bitterness often associated with adjudication. Mediation provides an opportunity to deal with the underlying interests in a dispute.
Skilled mediators employ numerous strategies to encourage the disputing parties to look behind the issues and their positions. The mediator addresses the expectations of the parties, both reasonable and unreasonable, and can help to control unreasonable expectations in ways the party’s attorney often cannot. Once the underlying interests of the parties have been determined, there are usually more settlement options to consider. As a result, mediation can achieve more creative outcomes than other dispute resolution processes. For more information, please contact the office.
