You have probably heard the term “mediation” offered as a solution to interpersonal issues that have legal implications, like:
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- Divorce and parenting
- Probate
- Landlord / Tenant
- Employment
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What is mediation?
Mediation is a process where a neutral third party facilitates a resolution of issues by participants. Let’s break that down:
Neutral Third Party: A mediator is not a judge, arbitrator, or any other type of decision-maker.
Facilitates the Resolution: The mediator’s roles is to help the parties identify the issues and help them come up with solutions.
Issues: Issues that are appropriate for mediation can range from legal issues like divorce, custody, probate, and landlord/tenant issues; to interpersonal issues in families, regarding aging in place and retirement planning; to conflict resolution between students.
By Participants: Just like it takes two to tango, it takes two (or more) to mediate. All participants in a mediation must be there voluntarily, willing to figure out a resolution.
Why choose mediation?
Better Outcomes: A mediated agreement is more balanced and can have more creative solutions than a winner-take-all litigation or a quid-pro-quo type of negotiation.
More Cooperation: Participants in a mediation tend to stick to the mediated agreement more than an agreement that was hotly contested, because they have more ownership of the solutions.
Less Expensive: For some people, this is what draws them to mediation initially. It’s definitely an immediate “win” for all parties if they can avoid paying thousands of dollars in litigation costs.
Less Stressful: Conflict is hard for most people, and mediation still involves addressing the conflict. But it has the opportunity to provide closure more quickly than going to court ever will.
Why not choose mediation?
Not everyone should mediate their case. In order to successfully mediate, both parties need to come to the table voluntarily.
Restraining Order: If there is a restraining order against one of the parties, mediation is not the right fit.
Truthfulness: Both parties need to be truthful with each other about financial information, and provide the information necessary to resolve the outstanding issues. Most information discussed in a mediation is confidential (this varies depending on the mediator).
Are mediators lawyers?
You don’t have to be a lawyer to be a mediator. In order to remain neutral and to facilitate, not adjudicate, the dispute resolution, mediators should not be giving legal advice. If the parties are agreeing to a legally binding agreement, each party should consult with an attorney who can provide them with legal advice.
I can help on all aspects of a mediation — from being the mediator to providing legal advice to one party in a mediation. Find out more here and reach out to let me know how I can help!
