Mediation is an effective and empowering dispute resolution process that is used to help people reach agreements or define the terms of their personal or business relationships.
In mediation, a neutral and impartial third party (the mediator) helps participants negotiate to find solutions. Unlike a judge or arbitrator, the mediator does not have any decision-making authority. Instead, the mediator helps the parties identify the issues that are in dispute, discuss options for settlement and choose the options that satisfy each person’s interests.
Mediation may be conducted in several sessions that lasts two or more hours each or is one long session. The mediation sessions are structured to help the parties reach settlement. For example, the mediator and the parties may meet together, or the mediator may see the parties in separate conference rooms if it is beneficial to avoid contact. The parties may have their attorneys present, if they choose.
In the first mediation session, the mediator makes a brief opening statement and explains the process. The mediator may also ask the participants to set “ground rules” that will make the process move more smoothly. With the assistance of the mediator, the participants identify the issues they wish to discuss and set an agenda. The mediator then helps them discuss the issues, separate the emotions, and identify options for settlement.
The agreements reached in mediation are reflected in a memorandum drafted by the mediator or an agreement drafted by the attorneys. The parties review the memorandum to see that it accurately reflects their agreements and that it is fair and equitable. It may be necessary to renegotiate certain provisions in subsequent meetings. Settlement is reached when the parties individually agree on all provisions, sign the agreement, and, if necessary, submit it to the court.
Mediation works because it provides a forum for controlled and purposeful discussion. People are able to focus on the problems and to take responsibility for finding solutions. It gives them a way to exit a relationship with dignity or to redesign a relationship if ongoing contact is necessary.
It is not unusual for people to come to mediation with a history of anger and unresolved conflict making it easy to assume that mediation won’t work. However, most people who have participated in mediation report that it was a good experience. People who use only the court system often report dissatisfaction.
Mediation offers many advantages over the traditional legal advocacy system:
- The participants, with the mediator’s help, define the issues they need to resolve and decide how they will resolve them. They are responsible for creating solutions that are fair and right for them. They take control over their decisions instead of turning their case over to a judge, arbitrator or jury.
- The participants communicate directly rather than through their representatives and can learn to communicate more effectively with each other.
- The participants focus primarily on how they want their future to look — not what happened in the past.
- The participants have the opportunity to reduce animosity and redefine their relationship if ongoing contact is necessary. They avoid the inevitable scars associated with a court battle.
- The process is private and confidential.
- The process saves time and money.
Mediation requires work. The participants must gather the necessary information to make informed decisions. They must let go of the idea that someone has to win and someone has to lose. They take responsibility for their decisions. It is not easy, but the benefits are well worth the effort.
There are several steps you can take to increase your ability to reach agreement.
- While it is not required, some parties retain an attorney who can act as an advisor in mediation and as an advocate if the case goes to court. Hiring an attorney does not mean that your case will result in an angry and expensive court battle. Competent attorneys can serve as both advisors and advocates if the case does not settle. Most people are better negotiators when they have the help of a professional who is concerned only with their interests.
- Choose a mediator who knows the law and has had experience in mediation. In Colorado, mediators do not have to be licensed or certified. Therefore, you must take care to choose a mediator who has knowledge and experience. You may want to interview the mediator before making a choice.
- Become an informed participant. In order to assess the fairness of a settlement, you must understand the facts and the legal issues of your case. Whether a contract is being negotiated or a relationship is being dissolved, people in mediation make decisions that affect their lives. Accurate and complete information leads to decisions that stand up over time.
- Concentrate on your needs and concerns. Mediation is easier and more successful if the parties are able to identify their interests rather than their positions. A “position” is something that has been decided. An “interest” is the reason why the person decided. Often people find they have interests in common even though their positions may be in conflict.
- Identify personal issues that may create problems in mediation. These problems can be accommodated in mediation. They should be discussed with your attorney and the mediator before the process begins.
- Remember, mediation is a process that provides a way to reach resolution. Mediation may require several sessions. During those sessions, agreements will be discussed, reviewed, and revised until a solution is reached that is satisfactory to all parties. You should be prepared to step away from the mediation sessions, think about what has been discussed, review the tentative agreements and renegotiate any unacceptable provisions.
Mediation, like all other forms of dispute resolution, involves some risk. As explained below, however, most of these risks can be managed by a capable mediator.
- Parties must have accurate and complete information in order to make good decisions in mediation. If the necessary information is not available informally, the parties can use the formal legal process of “discovery” to obtain the facts they need.
- Sometimes a person is concerned about whether he or she can be an effective negotiator. In these cases, the attorneys can be encouraged to participate to help balance the negotiating environment.
- If there is a history of abuse or violence, the mediator will carefully evaluate whether mediation is appropriate. The mediator must be informed of the situation so that procedures can be put in place to ensure a safe and successful mediation.
- Substance abuse may make mediation inappropriate. The mediator must be informed of any potential substance abuse problems.
- While mediation is successful in the vast majority of cases, not all mediation results in resolution. If it appears that there is no chance of settlement, the mediator will tell the parties, and the mediation can be terminated. Parties should not spend money in mediation if it appears that they must go to court.
- Parties must always protect themselves — and this is true no matter what form of dispute resolution they choose. Hiring experienced professionals is your best protection. If mediation is the chosen form of dispute resolution, the attorneys and experts can be actively involved and should communicate with the mediator.
Mediation is appropriate for all types of disputes including the following:
- divorce and custody
- prenuptial and postnuptial agreements
- corporate and shareholder disputes
- partnership formation and dissolution
- family business problems
- civil cases
- contractual agreements
There is no limit to the types of cases that can be resolved in mediation. Mediation means creative solutions.
In Most Cases, Mediation Will:
- Produce voluntary agreements by the parties.
- Contain rather than inflame the conflict.
- Focus on the needs of children.
- Generally cost less than litigation.
- Foster a cooperative relationship between parents.
- Resolve disputes more quickly than litigation.
- Produce more “personalized” agreements.
- Generally result in parents having more contact with their children.
- Result in higher rates of parenting plan and child-support compliance.
- Emphasize self-determination.