Let us examine each one of these statements:
I am not sure what mediation is or how it works.
Perhaps the biggest reason why people are reluctant to try mediation is
because they do not know what it is. Mediation is not therapy or
counselling. Mediation is a process by which a neutral person called
a mediator helps people in conflict negotiate a mutually acceptable
agreement. The parties to the mediation control the outcome. Unlike court or
arbitration, no one imposes a solution on a party. If all of the parties do
not agree to the result, the dispute remains unresolved. Let me be clear
about what I just said - If you do not agree, you are not forced to
settle. There are many places where you can obtain more information
about mediation, including the following web sites:
www.normanpickell.com,
www.mediate.com,
www.adrr.com and
www.lama.on.ca.
Table
of Contents for this article
What are the advantages of mediation for me?
The advantages of mediation for you, as one of the parties to the dispute, are
numerous. They include:
|
mediation
allows the parties themselves to determine the outcome, instead of
having it done by a third party such as a judge; |
|
|
the
parties can choose their mediator, whereas they cannot choose their
judge in a court case; |
|
|
sometimes
the solution reached in mediation is more creative than what a court
can order; |
|
|
no
one, including the mediator, can make you settle; therefore, if you do
not like what is being proposed, you can walk away; |
|
|
mediation is generally cheaper than going to court; |
|
|
mediation
generally resolves the conflict faster than going to court; |
|
|
mediation is much less adversarial than court; |
|
|
mediation is less stressful for all of the parties; |
|
|
mediation
is private, whereas court is generally public; |
|
|
feelings
can be expressed and heard in mediation by all parties; |
|
|
mediation
facilitates, promotes and improves communication between parties in
those situations where there will have to be future communication
between the parties; |
|
|
family
mediation minimizes the harmful effects of separation and divorce on
children; children of parents who mediate adjust better to their
parents' separation and divorce; the children are happier, more
secure, more reassured and less distressed; |
|
|
usually
at the end of the mediation, all parties are satisfied with the result
and the process - something that cannot be said by all parties who go
to court; |
|
|
because
the settlement that the parties reach is designed by the parties
themselves, it is more likely to be carried out and followed without
the need for external enforcement or further court proceedings; |
|
|
if mediation is unable to resolve the dispute, the parties are still able to go
to court; that option has not been lost by attempting mediation first. |
Table
of Contents for this article
I want to be in control.
It is natural that you want to be in control, particularly in an age where
people often feel that they are losing control over their lives. Mediation
lets you stay in control. In fact, you have far more control in
mediation than if you go to court. In court a judge will decide the outcome
of your case. In mediation you determine how your dispute will be resolved.
The mediator does not tell you how you will settle your case. You pick the
time that your mediation sessions take place, whereas in a court case, a
judge or a court clerk will tell you when you have to be in court. You
choose the mediator, whereas you cannot choose your judge. No one - not even
the mediator - can make you settle for something you don't want. You have
the ultimate tool - walking away from the mediation at any time - if you
don't like what is happening in the mediation process. You can still go to
court if you cannot resolve your dispute by mediation. A settlement done
through mediation can be better than one that you negotiate with the other
party - either directly or with the assistance of lawyers. A mediated
settlement can also be more creative than what a judge will order. Unlike
court, you do not surrender control over the result to an outsider. You want
to be in control? Use mediation!
Table
of Contents for this article
What good can a mediator be?
The skills of the mediator are central to the success of the
mediation. A properly trained mediator will:
|
|
set guidelines
for the behaviour of the parties during the mediation sessions; |
|
|
control the process, but not the outcome; |
|
|
facilitate the flow of information; |
|
|
help the parties make decisions; |
|
|
keep the conversation going and focused; |
|
|
find ways to level the playing field in cases of power imbalance; |
|
|
help the parties improve their communication with each other; |
|
|
help each party to hear and understand what the other party is saying; |
|
|
explore the individual interests and needs of all of the parties, instead of
their positions; |
|
|
help the parties to think of and consider all of their options; |
|
|
help the parties defuse anger and strong emotion; |
|
|
help the parties break any stalemates or impasses that occur; and |
|
|
act as referee when necessary. |
Table
of Contents for this article
We need to have our dispute resolved
quickly.
Then don't go to court. Mediation is much faster. In some
places, it can take months, if not years, to have your case tried in court.
You can set the time-table for the mediation sessions, instead of having a
judge tell you when you will appear in court. From start to finish,
mediation can usually be done in a matter of a few weeks, sometimes just a
few days.
Table
of Contents for this article
The other side and I will have contact with each other in the future.
Therefore, we need to get this problem straightened out
once and for all!
Mediation is better for those types of situations where the
relationship must outlast the particular matter that is presently causing
the conflict. The adversarial nature of court is too divisive. Part of the
mediator's job is to help the parties reduce their level of conflict and
hostility. Whether you are parents or co-workers or neighbours or business
people, mediation will provide you with a set of skills to help you in your
future dealings with each other. If some form of future cooperation is
required, mediate, don't litigate!
Table
of Contents for this article
We are "high conflict" parties.
Mediation is not limited to those situations where all parties are
reasonable, calm and rational. A properly trained mediator will usually be
able to handle even the most difficult parties. Of course, there will always
be the impossible party. But let your mediator first try some intervention
techniques before you throw out the idea of mediation. Don't be afraid to
ask your mediator about his/her experience with and training in high
conflict mediation.
Table
of Contents for this article
The other side is too miserable and mean.
Mediation is not limited to those situations where all parties are reasonable,
rational and trustworthy. Parties who go to mediation are not any nicer than
the ones who go to court. The difference is the process. Mediation is a
positive environment in which all of the parties find practical solutions
that work for them.
Table
of Contents for this article
The other side is too uncooperative or too unreasonable.
The mediator can contact the other side for you. Let the mediator try to
persuade the other party to come to mediation. One of the functions of the
mediator is to encourage all parties to be more cooperative and more
reasonable. Mediation can be effective even when conflict and anger is high.
Table
of Contents for this article
I don't trust the other side.
You don't have to trust the other side for mediation to work. Once an
agreement is reached between the parties and is reduced to writing, it is
binding and enforceable. But often the mediation process creates an
environment whereby the parties do develop a trust for each other.
Table
of Contents for this article
My dispute is not suitable for mediation.
Most disputes are suitable for mediation. However, mediation may not be
appropriate for some disputes. Some of the reasons for this are:
|
|
there may be a power imbalance for which the mediator cannot compensate; |
|
|
there
may be abuse issues for which the mediator cannot compensate; |
|
|
there
may be a need for a legal precedent; |
|
|
one
party may be acting in bad faith. |
If you think that your conflict is not suitable, discuss it with a
qualified mediator first before closing the door on mediation.
Table
of Contents for this article
This case is too complex for mediation.
Mediation works well in complex cases because you can negotiate each item
separately or as part of a whole package. In the event that you are unable
to resolve all of the issues by mediation, you may at least be able to
simplify the case so that it is less costly to have a trial.
Table
of Contents for this article
We have already tried to settle this dispute.
A mediator can look at what is preventing the parties from reaching a
settlement and use his or her mediation skills to try to break the impasse.
As a neutral person without any vested interest in the outcome, the mediator
is able to help the parties brainstorm to find a mutually agreeable solution
to the conflict. Lawyers, on the other hand, are in an adversarial mode and
are usually concentrating on what his or her client wants or what is best
for that client.
Table
of Contents for this article
We are in the middle of court proceedings now.
Mediation can be done at any stage of the conflict. It is never too late.
Obviously the sooner that mediation is tried, the better it is from the
standpoint of the cost of going to court. However, mediation can even be
done a few days before the trial is to begin. At trial there will be a
winner and a loser - and possibly an appeal to a higher court. But in
mediation, everyone wins because both sides must be in agreement with the
outcome. No result is imposed by the mediator on a disagreeing party. And
there will not be any appeals!
Table
of Contents for this article
I don't want to compromise.
Mediation does not always mean that you have to compromise. With the
assistance of the mediator, you may be able to come up with new ideas and
reach a settlement in which all parties are very satisfied with the outcome.
Table
of Contents for this article
If I suggest mediation, won't the other side interpret this as a sign of
weakness?
Suggesting mediation is not a sign of weakness. Today, with mandatory
mediation legislation in effect in several jurisdictions, the recognition of
successes in mediation and cost-conscious parties, suggesting mediation is
being seen as a sign of a willingness to be realistic.
Table
of Contents for this article
We have to pay for the Mediator.
Yes, the parties do have to pay for the mediator, whereas a judge in court is
free. For this reason court is often perceived as being less expensive than
mediation. However, even when you add in the cost of the mediator, mediation
is generally cheaper for the parties than going to court. The parties miss
less time from work in the mediation process than they do in a court action.
The legal costs associated with mediation are usually lower than they are
for court. In mediation you do not have all of the out-of-pocket expenses,
including witness fees and court filing fees, that you have with court.
Table
of Contents for this article
How do you find a mediator?
To find a mediator, you have several options:
|
|
contact one of the mediation organizations to which mediators belong. For a
listing of some of these organizations (including their web site addresses),
please visit the "Mediation Organizations" section of
www.normanpickell.com; |
|
|
visit the "How
to Find a Mediator" section of
www.normanpickell.com; |
|
|
ask
your lawyer; |
|
|
ask
your friends; |
|
|
check
the internet; |
|
|
check
the yellow pages. |
Table
of Contents for this article
How do you choose a mediator?
Even in those jurisdictions where mediation is mandatory, the parties are
still free to choose their own mediator. Once you have the names of some
mediators, you need to select one who is acceptable to all of the parties.
There are many considerations when selecting a mediator. Begin by examining
the training and other qualifications of the mediator you are considering.
Ask for and look at her or his Resumé. The skills of the mediator are
central to the success of the mediation. Remember that the mediator is
neutral and does not decide your case. Therefore, do not reject a mediator
simply because the other side suggests that person. In the sub-section
entitled "Articles to Assist You in Choosing a Mediator" in the "How to Find
a Mediator" section of
www.normanpickell.com, you will find several excellent articles that
will help you choose a mediator.
Table
of Contents for this article
How can I be sure the mediator will not favour the
other party?
Regardless of who suggests or pays for the mediator, the mediator will
not take sides. The mediator is neutral. If you think that the mediator is
favouring the other party, you can decide to use a different mediator.
Remember, if you don't like the way that the mediation is going, your
ultimate tool is to withdraw from the mediation process. A good mediator
knows that you can do that and therefore will act accordingly.
Table
of Contents for this article
The Parties cannot communicate well (or at all).
Conflict prevents - or destroys - effective communication. One of the tasks of
the mediator is to help the parties improve their communication so that the
parties can begin the process of talking constructively about the issues in
dispute. A skilled mediator is trained to keep conversations going and
focused.
Table
of Contents for this article
If the other Party is in the same room as I am, he/she will just shout at
me.
Part of the mediator's job is to make both parties feel safe and comfortable
in each other's presence. While the mediator will usually allow each party
to do some venting, the mediator will not permit any party to shout or
otherwise verbally abuse another party. Sometimes the parties will be kept
in separate rooms and the mediator will shuttle back and forth.
Table
of Contents for this article
I cannot be in the same room as the other party.
In a private (caucus) session, tell the mediator that you cannot be in
the same room as the other party and why. Mediation is a flexible process.
In some mediations, the mediator shuttles back and forth between the
separate rooms of the parties so that the parties do not see each other.
This is particularly true if there has been a high degree of abuse in the
parties' relationship.
Table
of Contents for this article
I am not a good negotiator.
Some people feel that they cannot stand up for themselves and that others will
take advantage of them. This is where a good mediator helps to level the
playing field. While the mediator must remain neutral, the mediator will not
allow one party to take unfair advantage of another party. There are many
techniques that a skilled mediator uses to level the playing field. But if
the mediator does not feel that he/she can properly level the playing field
even with these techniques, the mediator will bring the mediation to a halt.
Table
of Contents for this article
Mediation is just "free discovery".
It is true that all parties will learn more about each other's case in
mediation. Usually the mediator will want the parties to give full document
disclosure to each other before the mediation sessions begin. But this is
not any different than the rules that exist in most jurisdictions for
document disclosure in court cases. With present-day court rules for
disclosure, the facts will come out at some point. The sooner that the facts
are learned by all of the parties, the sooner your dispute will likely be
resolved.
Table
of Contents for this article
My lawyer says we don't need mediation.
Why is your lawyer saying that you don't need mediation ? Your lawyer may have
valid reasons. On the other hand, maybe your lawyer is not very familiar
with the mediation process. In how many mediations has your lawyer been
involved ? Perhaps the lawyers for the parties need to have a joint meeting
with the mediator to see if the dispute is suitable for mediation.
Ultimately it is the client - and not the lawyer - who has the final say as
to what process is used to resolve the dispute. If you suspect that your
willingness to mediate is not being communicated to the other party,
consider contacting the other party directly. (Your lawyer cannot do this,
but you can.)
Table
of Contents for this article
I want my lawyer present.
Mediation does not exclude lawyers. In some types of mediation, lawyers are
present at all of the mediation sessions. In other types of mediation,
lawyers attend sessions only when requested by the parties. Even when
lawyers do not attend any of the mediation sessions, lawyers often still
advise their clients on their legal rights and obligations. Mediation
changes the role of lawyers from adversarial negotiators and advocates to
legal advisers.
Table
of Contents for this article
Mediation does not guarantee success.
This is true. Likewise, when a case does go to trial, the outcome is not
guaranteed. Unlike television, no one writes the script ahead of time for
what will actually happen in the real courtroom. The courtroom is a very
unpredictable place. But statistics indicate that over 80 % of all
mediations result in a settlement.
Table
of Contents for this article
What if the mediation process is not working?
Either party can withdraw from mediation at any time. Just because one party
agrees to try mediation does not mean that the process needs to continue
until a settlement has been reached. If, at any time, one of the parties
believes that the mediation process is not working for her/him, that party
should communicate that belief to the mediator and bring the mediation to a
halt.
Table
of Contents for this article
I want to have my side of the story heard.
One of the reasons that people want to go to court is so that they can tell
their side of the story. However, when one side is telling his or her story
in a court room, often it is only the judge, and not the other side, who is
listening. In mediation, all parties still tell their story. But the
mediator tries to make sure that the other side is listening and
understanding, even if that person does not agree with what is being said.
Table
of Contents for this article
I want a judge or jury to decide.
For a variety of reasons, some people want their day in court. However, what
many people do not realize is that the vast majority of cases which start
out going to court settle without having a trial and without a judge making
a decision. The parties may settle after a pre-trial settlement conference.
They may settle on the doorsteps of the court house on the morning of the
trial. They may even settle mid way through the trial. It is only a very
small percentage of cases that actually receive a full hearing and decision
by a judge or jury.
Table
of Contents for this article
I am going to court because I know that I am right and I am going to win!
When a case does go to trial, the outcome is not guaranteed. Unlike
television, no one writes the script ahead of time for what will actually
happen in the real courtroom. The courtroom is a very unpredictable place.
And trials are expensive, both monetarily and emotionally!
Table
of Contents for this article
My case involves family violence and abuse.
One of the parties may have been physically and/or emotionally abused by the
other party. This may include one party being very controlling of the other
party. The mediator needs to be made aware of these facts. In such cases, a
properly trained mediator will screen the parties before commencing
mediation to see if the process is suitable. If there has been abuse, the
mediator will do one of two things:
|
|
refuse to mediate; or
|
|
|
modify the mediation process to make it safe and fair for the abused or
weaker party.
|
If you find yourself in this situation, don't be afraid to ask the mediator
how the process can be made safe and fair for you. While a mediator's
training and background is always important, it plays an even higher role in
situations where there has been violence or abuse. Ask your prospective
mediator about her or his qualifications in this area.
Table
of Contents for this article
The conflict will go away.
How many times have we heard people say that the conflict will "just go away."
In reality, ignoring it usually causes the conflict to grow with the result
that the destructive effects increase.
Table
of Contents for this article
I had a prior bad experience with mediation
Mediation is not always successful. Statistics indicate that over 80 % of all
mediations result in settlement. Perhaps your earlier experience was in that
less than 20 % category. That should not stop you from trying again. Each
case is different. Maybe the reason for the prior bad experience was the
fault of the mediator. Are all teachers, farmers, doctors, nurses, auto
repair technicians, secretaries, computer programmers and lawyers equal in
their skills ? Of course not. The same is true for mediators. You need to
look at the qualifications of your mediator.
Table
of Contents for this article
If mediation fails, we have wasted our time and money.
Even though mediation might not result in a settlement, that should not stop
you from trying mediation. As I have already stated, the chances are very
high that mediation will produce a settlement. But even where a settlement
is not reached, the parties are often better able to focus on the real
issues after attempting mediation. This reduces the length and costs of a
trial.
Table
of Contents for this article
What are the advantages of mediation for the lawyers?
Just as there are advantages of mediation for the parties, mediation also has
its advantages for the lawyers involved. These advantages include:
|
|
mediation is less stressful for lawyers; |
|
|
lawyers will have clients who are generally more satisfied by the
mediation process than the court experience; |
|
|
a satisfied client is more appreciative of the lawyer's services and
spreads the good word about that lawyer; |
|
|
more clients will seek out that lawyer for similar satisfactory results; |
|
|
the
mediator can assist lawyers with difficult clients to see the reality of
their case; |
|
|
lawyers representing clients in mediation are more likely to be paid
their full fee, whereas lawyers who go to court often do not bill the
client the full fee, or they sometimes have trouble collecting their
full fees from their clients. |
Table
of Contents for this article
I just don't want to mediate!
Why not ? What do you have to lose ? If your concerns about the
mediation process are not addressed in the answers to the concerns above,
why not phone or meet with a mediator and discuss the process, including the
advantages and risks, with him or her. Many mediators will do this without
charge.
Table
of Contents for this article
In the last century, people with a dispute automatically thought of going to
court. In this century, more and more people are turning to mediation to
resolve their differences. Instead of asking "Why should I mediate?", ask
yourself "What do I have to lose by mediating?"
Norman Pickell is a mediator and lawyer based in Goderich, Ontario, Canada. He
can be reached through his web site
www.normanpickell.com or by phoning 519-524-8335 or by writing to P.O.
Box 430, Goderich, Ontario N7A 3L5.
Top
Mediation:
Reluctant to Med
Back to 