Mediation comes under the larger umbrella of what is known as alternative dispute resolution or ADR. ADR essentially embraces means of settling disputes without going through the rigors of the courtroom; that is, by a process alternative to litigation. ADR can also stand for appropriate dispute resolution, which means determining what process is most appropriate to reach a resolution given the particular circumstances of the case. Mediation is one of the most popular forms of ADR.

The Mediation Process

Unlike a court action or arbitration, where the judge or arbitrator renders a decision by which the parties are bound, in mediation that is not the case. In mediation, the mediator helps the disputing parties come to their own resolution of their dispute. The mediator facilitates or manages the negotiations or discussions between the parties in order to help them reach their own agreement. Thus, the resulting agreement is the parties’ solution as to how the dispute will be resolved, not someone else’s.

Displaying sensitivity, empathy and understanding to the individual needs of the parties allows for efficient facilitation and management of the resolution process in a manner uniquely tailored to those needs and circumstances, and helps the parties navigate through difficult moments during the process.

Self Empowering

By reserving the decision making power to themselves, the parties retain control over the outcome of the dispute. From this standpoint, mediation is a far more “self empowering” form of dispute resolution than surrendering this control to an arbitrator or a judge. The assumption is that the parties themselves are more capable of determining what is best for them rather than a stranger who is not intimately involved with the parties or their circumstances.

Focus on Interests and Options

The mediation process focuses on the interests of the parties. The interests of the parties may be quite different from their hard and fast positions when they first come into mediation. Frequently a party will refuse to mediate or otherwise settle a dispute, convinced there is only one solution to his or her problem. With the help of a skilled mediator, the parties can explore their interests and needs, which drive their positions, as well as explore options. Frequently, there are different solutions that will serve both parties’ interests, resulting in a “win-win” situation for both.

When Appropriate

Mediation is particularly appropriate in cases where the parties want a speedy and cost effective resolution of their dispute. It is also appropriate where confidentiality is important, such as preserving trade secrets or business plans, the need to avoid the “airing of dirty laundry” in public, and the need or desire to preserve relationships.

Preserving Relationships

Unfortunately, when parties go to litigation, the atmosphere frequently becomes adversarial and acrimonious, thus rupturing any remaining sense of a cooperative spirit between the parties where that is important. The litigation generally can leave one or both parties angry, bitter and resentful with a desire to “get even” the next time. And there will likely be a “next time” in those circumstances that require a continuing relationship to some degree. In mediation a venue exists where disputes can be resolved in a manner that also preserves, to the extent possible under the circumstances, those relationships.

Mediation is especially useful in such situations. In the area of family breakups, for example, more often than not a divorcing husband and wife will need to continually relate to one another for several years over custody, visitation and other issues, in rearing of their children.

In the area of business disputes, the continuation of an ongoing relationship might be vital or at least advantageous, to both parties. A typical example would be a business or professional relationship where neither party wants to walk away from his or her investment, including investments of money, time, energy and emotions; or a vendor-vendee relationship, where each relies on the other for the sale and purchase of goods.

Ideally, in all such situations, mediation can not only lead to a resolution of the present conflict at hand, but it can also give the parties techniques to deal with one another and work through new issues that will inevitably arise in the future. This is something that a court has no authority to do.


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