Using Mediation to Solve Problems
by Chad A. Kepros
Mediation is a confidential process in which a neutral third party helps people reach agreements and solve problems. The most important job of the mediator is to help parties understand and effectively state their own self-interest. Too often parties in conflict try to make decisions based on the fear of the things they don’t want, rather than based on things they do want. Effective mediation helps people better understand their individual wants and needs so that good decisions can be made.
Effective mediation requires that both parties have complete facts and a full understanding of the rules that will apply to their case. If financial issues are involved in the case, the parties should prepare and exchange financial affidavits and supporting financial documents before the mediation so that the mediation can be the most effective. When parties make decisions without complete information there is a much greater chance that one or both parties will be unsatisfied with the agreement at some point and that the agreement will either not be finalized or not be followed.
Mediation does not replace the need for an attorney. Good family law attorneys not only advocate for the client’s interests, but also help clients organize and understand the facts of their case and provide important information and advice on how the law will apply to their case and the range of outcomes that the client should expect. The mediators at Bray & Klockau, P.L.C. are licensed attorneys practicing exclusively in the area of family law. The mediator may provide information during the mediation, but will not provide legal advice. Obtaining legal advice before the mediation enables both parties to better understand the available options and the legal consequences of the decisions to be made. While the mediator may provide information and suggest possible solutions, it is the responsibility of each party to be informed so that good decisions can be reached.
The mediator does not decide the case, but instead helps parties make mutually agreeable decisions. Both parties must be able to state what he or she wants and negotiate in his or her own self-interest. Often times there is a power imbalance between the parties, which can make it difficult if not impossible to make informed and mutually-agreeable decisions. One of the most important jobs of the mediator is to help correct any imbalance of power so that each party can effectively state his or her own interests.
You should prepare for mediation. Take time to think about what you want to talk about in mediation and what is important to you. Work with your attorney to organize the facts in your case to talk about not only your legal rights, but your legal responsibilities. If you have written proposals for how to resolve issues in your case, provide them to the other party in advance of the mediation and bring them with you to the mediation.
At the mediation, remember that the mediator will not decide your case. Often times parties will spend time in mediation trying to convince the mediator of the rightness of their own position or the wrongness of the other party’s position. Since the mediator will not decide the case, and will not report what has occurred in the mediation to the court, this is a wasted effort. More importantly, it is a wasted opportunity to discuss and work out issues with the other party in a way that might meet both of your needs.
Mediation is confidential. You should be able to speak freely in the mediation and freely consider possible solutions which you might ultimately reject without fear that doing so will be used against you in a later court proceeding. The mediator will not report what occurred in the mediation, except to the lawyers for the parties. Prior to the beginning of the mediation both parties further agree that the mediator will not be called as a witness in a later court proceeding. The purpose of these rules is to create an environment in the mediation where both parties can have an open and honest discussion without fear that doing so will harm their case.
Mediation can be a very useful tool to resolve problems. As with any other tool, mediation requires good information, a willingness and ability to negotiate, and an open mind in order to be most effective. The benefits of a successful mediation are immense. Mediation is often less expensive than litigation. Your case may be resolved much more quickly through mediation than it would be through litigation. Most importantly, you control the result on the issues that are important to you. Like so many other things, the result obtained in mediation will only be as good as the information understood and used in the process.