Frequently Asked Questions
MEDIATION SERVICES
In mediation, a person who is not directly involved in the problem at hand helps the parties communicate more effectively with each other. The mediator guides people to have productive conversations that are more likely to lead to a mutually acceptable solution.
Mediation is voluntary and informal, and statements made during mediation are, in almost all cases, kept confidential. Mediation is also non-binding, meaning each party can decide for itself whether to agree to any particular offer or proposal. The mediator does not rule on any issues or decide who wins or loses; the parties control the outcome of the mediation.
When people or businesses are locked in a dispute, they often dig into their positions and cannot step back from the problem far enough to see solutions they might not have thought of before. This is when mediation can be a game-changer.
Because a mediator does not have a stake in the dispute, she sees the dispute not as a battle between two sides, but as a problem that can be solved if everyone tries to find a way to accomplish each party’s goals and to address each party’s concerns.
An effective mediator focuses the parties on comprehensive problem-solving. Take the example of a manufacturer and a distributor that disagree on the price the distributor should pay for the manufacturer’s product. They can waste time haggling over the price, and they can destroy their working relationship by posturing (“I will start out high at $10,000 even though I think $7000 is a fair price because the other side will try to bargain me down anyway”). Or, they can think creatively about how the manufacturer and the distributor can both maximize their profits, perhaps with the distributor paying a lower per unit price but investing its own resources to expand the market for the manufacturer’s product. When demand for the product increases, both the manufacturer and the distributor benefit.
A good mediator in this example would help the parties see they have a shared interest in maximizing their profits and they can negotiate an agreement that not only resolves the immediate dispute (over the price) but that also preserves and builds upon their mutually beneficial relationship with each other.
In other cases, conflict can be worked out only with the players parting ways. There, a successful mediation would resolve the dispute once and for all, while making sure the parties do not come into conflict again.
Even when there is no direct disagreement, people often need to have difficult conversations with each other. For example, subordinate employees want to tell their bosses what changes they would like to see to foster a better workplace environment. School boards need to hold public hearings on a contentious policy choice. Attorneys on opposite sides of a bitter lawsuit have to hammer out an agreement concerning discovery protocols. Companies want to negotiate a business deal but personal emotions or cultural barriers prevent them from getting on the same page.
A sensible mediator can make difficult conversations easier and more productive because all participants know that she is not taking anyone’s side, but instead is there to promote communication. She can rephrase or clarify comments in a neutral manner; ask probing questions without seeming biased or insensitive; and guide the discussion to achieve the purpose of the meeting.
THE NUTS AND BOLTS
In most cases, after I have been retained to mediate a dispute, the following will occur:
- Each party will first provide me with a short, written description of the dispute. The parties are encouraged to share all or part of their submissions with each other but are not required to do so.
- Each party may have a private, 15-30 minute phone conversation with me if it wishes.
- All parties, along with their lawyers or other representatives, and I will meet for the mediation session. For the convenience of the parties, most mediations will be conducted virtually, but if circumstances warrant, we can meet in person. During the session, I will speak with each party separately to understand its interests and concerns, and will convey them to other parties as appropriate to help the parties negotiate a resolution that everyone agrees to. I will encourage the parties to focus on practical solutions that eliminate conflict as well as maximize the benefits for everyone.
- If an agreement is reached at the mediation session, the parties will document their agreement in writing. If an agreement is not reached, the parties may wish to reconvene at a later time or may ask that I continue facilitating dialogue between them.
Not all matters will follow this path. The mediation process is flexible and can be tailored to the parties’ needs or the specific circumstances of the matter.
Yes. Mediation can help people and businesses resolve their disputes before they spend time and money hiring lawyers and suing each other. While lawyers can be useful when complicated issues of law dominate the dispute, disagreements can often be resolved through an understanding of the parties’ business or personal interests, goals, and concerns. Plain and direct talk can be far more productive during negotiations than legalese or unnecessary formality. Furthermore, a mediated resolution is more satisfying than a judgment imposed by a judge or jury; unlike in court, parties in mediation can candidly express their points of view and they can freely accept or reject any proposal put on the table.
Yes. All parties to a dispute need to agree to work with me as a mediator before I can try to resolve a dispute. I do not have the authority to compel anyone to participate in a mediation. The parties may, however, decide among themselves who will pay for the costs of mediation.