How Does The Mediation Process Work?
Jessica A. Stepp
This article provides an overview of the mediation process.
Why Mediation Works
We are in the midst of a litigation crisis. The high cost and long delays associated with the trial of civil matters often make litigation an impractical method of resolving disputes. It is not uncommon for the attorney's fees, expert witness fees, jury fees, court reporter fees and other related costs to exceed the amount in dispute.
Litigate Or Mediate?: Mediation As An Alternative To Lawsuits
Mediating a case before a lawsuit is filed enables the parties to present their case to a mutually selected neutral person before any money is spent on litigation. The cost of mediating a case is minimal compared to the costs incurred through the life of a lawsuit.
What Does A Mediator Do?
Edward P. Ahrens
Okay, we know you can't make decisions. We know you can't issue orders. ('I'm not a judge or an arbitrator, blah, blah, blah.') We know you can't take sides, must always remain neutral. And we know you can't give us legal advice. And then you tell us mediation is a consensual process. Bummer. Now the other side can walk at will! "So, what in the hell DO you do?"
The “What” of Mediation: When Is Mediation the Right Process Choice?
As mediators, lawyers, and their clients gain more experience with mediation, fewer and fewer types of disputes will seem less amenable to the process. Even if mediation only succeeds in improving the parties’ communication, in identifying their underlying interests, in narrowing the issues in conflict, or in helping them more carefully evaluate their litigation option, it can move the dispute towards a quicker, more cost effective resolution.
All You Need To Know About Mediation But Didn't Know To Ask-A Parachute for Parties in Litigation!
Mediation is the cutting edge dispute resolution process which resolves litigation at a fraction of the cost, time and emotional pain of trial. The key participants, the parties to litigation, haven't a clue what mediation is or how it works until after they have been through it. This article is addressed to the parties, as opposed to lawyers. It explains what mediation is, how parties can make it work to settle disputes, and thus avoid the nightmare of trial.
Mediator Neutrality: How is it possible?
Rachel Fishman Green, Esq.
How could a mediator be neutral about your situation when you are getting divorced? Surely one of you is right and the other is wrong! If you know in your bones – and all of your friends agree – that you are right, you may think that mediation would not make sense for you, because you don’t want to compromise.
Eleven Questions Most Commonly Asked About Mediation
Forrest (Woody) Mosten
We all have questions about mediation. Not just disputants, but also the lawyers, and mediators themsleves. This list aims to answer some of the peristent ones.
Mediation: A Process To Regain Control of Your Life
Mediation provides a method for people with disputes or conflicts to exercise their own choices and discretion and to regain a sense of control over their lives in resolving disputes. It is a means by which you can be an active participant in the decision making process and have direct involvement in the determination of your destiny.
Frequently Asked Questions about Mediation and Negotiation
Jim Melamed answers nine frequently asked questions about mediation and negotiation such as "What is mediation? and "What if I want to be a mediator?". Includes links to further resources.
The Mediators Role: Tackling Their Illusion of Objectivity
Recent studies of employment discrimination jury verdicts in California, substantiated the bias of humans. How can mediators tackle their illusion of objectivity and keep neutral during the mediation process?
Lawrence A. Huerta
While the benefits of mediation vary somewhat depending upon the nature of the dispute, and model of mediation applied, the following are some of the benefits typically associated with mediation.
Selecting a Mediator
Choosing A Divorce Mediator
Finding and selecting a mediator can be easier if you follow some simple steps. In the best of circumstances, divorce is an uncomfortable process. Take the time to assure you have a mediator whom you like, respect and believe to be qualified to help both of you negotiate that equitable settlement.
Choosing The Right Mediator: A Guide To Effective Mediation Styles
The market demands a mediator who will give the parties the best chance of settling their dispute. So, how do you choose that mediator? Here are one mediator's views after having mediated thousands of disputes over the past fourteen years.
Choosing the "Expert" Mediator
When a dispute is truly ripe for mediation, who you choose to mediate is unlikely to affect the outcome. Frequently, however, who you choose to mediate can be critical to making mediation work.
Advocacy Skills: Tips for Selecting a Good Mediator
With several sources for professional mediators, the advocate often struggles with criteria for mediator selection. Selection criteria are all too often limited to mediation experience and settlement rate. If you are in the market for a mediator, your mediator selection process may benefit if you consider the following additional criteria:
Styles of Mediation: Facilitative, Evaluative, and Transformative Mediation
Mediators around the country find themselves uncomfortable with what is being called mediation in their own and other areas. Accusations are made that one or another approach to mediation is not “real” mediation or are not what clients wanted. In addition, many clients and attorneys are confused about what mediation is and is not, and are not sure what they will get if they go to mediation.
A Study in Mediation Styles: A Comparative Analysis of Evaluative and Transformative Styles
This study investigates two of the four primary mediation styles, evaluative and transformative mediation, and evaluates their strengths and weaknesses. The final conclusion of this study is that no one style is appropriate for dealing with all conflicts. Instead, different styles should be considered as options during the conflict resolution process.
The Narrative Approach to Mediation
Narrative Mediation carries with it both a certain perspective and methodology. It is a specific model developed out of the tradition of Narrative Family Therapy and, as such, represents a uniquely therapeutic approach to mediation. It challenges the mediator to acknowledge and take on assumptions made by conflict parties in creating personal and societal-level stories, make them explicit, and give the parties the power to change them through mediation.
Where Can Mediation Be Useful?
Mediation: The Sensible Means For Resolving Contract Disputes
Kenneth P. Kelsey
Along with more complex contracts comes increased opportunities for contractual disputes. Most construction contracts today contain some form of Alternative Dispute Resolution (ADR): a contractual means to resolve disputes without going into the classic courtroom setting.
Getting A Divorce? Why You Should Not Just Fight It Out
Mimi E. Lyster
Many have traveled the adversarial road, and probably for many of the same reasons. Constant fighting, arguing and blaming in a marriage or similarly committed relationship generally leads to more of the same while dissolving it. Unfortunately, the consequences of continuing this behavior can be dramatic, including protracted litigation, escalating costs, a dramatically reduced standard of living and significant damage to your children’s emotional well-being.
Resolving Disputes Through Employment Mediation
Few controversies are more damaging to a business than a dispute with an employee. In today's environment, a single major employment dispute can result in the erosion of substantial assets because of legal fees and a potential jury award.
Construction Mediation Really Works
The use of mediation to resolve disputes between members of the construction community is finally taking hold in the industry as word of its effectiveness, efficiency and economy spreads. Following is the story of a construction mediation mediated by Construction Mediation Inc in New York City.
Estate Planning and Family Business Mediation
Unlike J.R. Ewing in Dallas, controversy arises among families and business owners more often as a result of misunderstanding than malevolent motives. When people get beyond the resistance and begin working together on an estate plan MOU or partnership charter, they discover that openly dealing with issues lessens the likelihood of misperception, builds trust and confidence, and improves their chances for long-term success.
The Allagash: A Case Study of a Successful Environmental Mediation
Jonathan W. Reitman
What are the elements which make possible the successful mediation of an environmental dispute? In this article, Jonathan Reitman analyzes what conditions led to the resolution of a 33-year-old controversy about the management of the Allagash Wilderness Waterway in northern Maine. The polarized dispute involved wilderness canoeists, sportsmen, environmental organizations, local residents and state and federal regulators. Their recent negotiated agreement was hailed as "comprehensive and visionary." The mediator who facilitated the negotiations reflects on lessons learned.
Congregational Conflict Resolution And The Use Of Scriptures
Lester L. Adams
This article gives some insight and wisdom on how the scriptures are useful in resolving congregational conflict.
ADR in Healthcare: The Last Big ADR Frontier?
Rob Robson, Ginny Morrison
You are probably saying to yourself “What a strange title.” This seems especially true when you consider that dispute resolution and conflict management (DR/CM) practitioners are a fairly flexible, adaptable and imaginative group. Surely there will be lots of new “frontiers” left for us to conquer in the future?
Medium Massaging The Message
Robin M. Kennedy, Jon Michael Gibb, Llewellyn Joseph Gibbons
The course of ecommerce is not always smooth. Disputes are inevitable. These disputes will have to be resolved if ecommerce is to develop to its full potential. Alternative Dispute Resolution (ADR) is a range of processes for resolving online disputes. Businesses and consumers who engage in ecommerce are often more willing to mediate than to arbitrate their disputes in an online forum because mediation is a voluntary process in which a third-party facilitator assists the parties to the dispute to arrive at a mutually agreed upon resolution.
Student/Peer Mediation: A Multi-Purpose Tool
Jim Eisele After reviewing several articles regarding student/peer mediation, one thing is clear: student/peer mediations have several benefits, many of which are long-lasting.
Tipping Points - Reasons Why Mediation Works in Complex Family Disputes
Timing is everything. In complex family disputes the simple fact is that mediation can be the forum for positive change, the tipping point, but it needs a number of preconditions to be successful.
Eldercare Mediation: A New Way To Make Decisions Regarding Aging Parents
Janet E. Mitchell
The article describes how families can work together in making collaborative decisions regarding the care of elderly parents. It defines and explains family mediation, noting the kinds of topics that can be discussed.
How Mediation Can Help Same Gender Relationships
Since same gender couples cannot legally marry yet in most states and foreign countries, how can they formalize their relationships? By using a "Living Together Agreement." In this way they can couple consciously in an attempt to create a solid foundation on which to build their relationship. It's the perfect tool for sweeping away false expectations and building honest, authentic communication.
Mediation in Sexual Harassment Cases
Mediation can provide an ideal setting in which the complainant can accomplish the primary aim of stopping the behavior. Without such a mechanism for dealing with the situation, the complainant has only two choices: go through the process of a formal complaint and investigation, or do nothing. These options often do not meet the needs of the employee or the organization.
Using Mediation Effectively
Pre-Mediation Questionnaire: Dispute Clarification Tool
Many disputes have a prior history of an amicable relationship. This is especially true in business disputes. Thinking back on "better days" can create the atmosphere for productive dialogue. Use this tool to help prepare for mediation.
Preparing For Your Mediation
It is likely that you asked for or agreed to mediation because the strategies you have already tried have not helped you resolve your dispute. The purpose of this article is to help you think - before your mediation - about what you can do as a participant to give your mediation the best chance to succeed.
Learning To Use The Mediation Process - A Guide For Lawyers
Mediation is changing law practice. It is the cheapest, lowest risk, and most under-utilized form of alternative dispute resolution. And the demand for it is rapidly growing.
Focusing On Interests Rather Than Positions -- Conflict Resolution Key
Steven P. Cohen
We can take positive steps to prepare for the decision-making process and we can monitor our own behavior - and that of other participants -- as the process goes forward. By following a few common sense rules we can reduce conflict and turn it into cooperation and reach solutions that really work for all the participants.
Reframing: The Essence of Mediation
The thesis of this article is that the psychotheraputic technique of reframing is central to effective mediation. Several mediation scholars' theories are examined under this thesis. These theories include the use of symbols, deception, active listening and dramatic frames.
Tips for Dealing with Emotion in Mediation
You don't have to be a mediator to know that emotional issues lie at the heart of conflict. Seasoned mediator, Eileen Barker provides practical suggestions to deal with the emotional dimension of conflict.
Effective Alternatives Analysis In Mediation: “BATNA/WATNA” Analysis Demystified
This article explains the concept of alternatives analysis and presents a method for conducting an analysis with parties in mediation, including many of the considerations that may affect the parties’ perception and use of the analysis.
Managing an Imbalance of Power
One technique I often get requests to train on is managing an imbalance of power. There are effective techniques for handling power imbalance, however before we go too far, let’s consider what is an imbalance of power?
Dealing With A Competitive Approach In Mediation
Most people approach mediation with the best of intentions. However, they sometimes encounter adversaries who don't quite see things their way, and approach the process in a much more competitive and sometimes hostile manner.
About Collaborative Divorce
What is Collaborative Divorce?
The essence of "Collaborative Divorce" is the shared belief of the participants that it is in the best interests of parties to commit themselves to resolving their differences with minimal conflict and no litigation. They seek to adopt a conflict resolution process that does not rely on a Court imposed resolution. The process does rely, however, on an atmosphere of honesty, cooperation, integrity and professionalism geared toward the future well being of the parties.
The Adversary System
Law school training and the real world attorney work experience combine well established and powerful institutionalization of the adversarial-representative model of conflict resolution. While it is not the only model for negotiating and resolving issues, it is the one which becomes ingrained in anyone who works in a litigation system. Most attorneys who regularly handle litigation work, fantasized, in the days before being admitted to practice, about standing at the bar of justice making an impassioned and eloquent argument which wins the case or surgically dissecting a hostile witness with a brilliant cross-examination. The daily grist of the litigator's mill, however, is the stress and frustration of trying to achieve the client's objectives against the impediments and opposition of the parties on the other side of the case.
The costs of this process are usually observed as being both outrageously high and inevitable. Both are true statements about the adversarial model. What is also true is that this model is ill-suited for the purposes of resolving family law conflicts. Rather than assuming the conflict must adapt to the traditional adversarial litigation model, the collaborative approach is based on the idea that the process should adapt to the actual needs of the parties in conflict in reaching agreement. In the traditional competitive approach, where the parties objectives or strategies collide, it is assumed that the only way to move past, through, around or over the opposition, is to employ the power of the law-based procedures to make something happen. In the face of opposition from the other side, a lawyer looks to the power of the process and often overlooks the reverberating impact that process will have on the daily lives of the clients and their children. Furthermore, this power-based, competitive approach nurtures continued resistance as the participants have little or no reason to view the other side as anything but a threat and something to fear.
The collaborative approach is both pragmatic and grounded in its focus on the needs of the parties. Initially, those needs fall into two categories: process needs and outcome needs. The process needs are determined by accepting the party in the emotional state in which they enter the process. That person may be experiencing a wide range of emotions such as, anger, hurt, distrust, bitterness, guilt and grief. These emotions may come with a wide range of personality characteristics such as, intelligent, unsophisticated, analytical, visual, needy or codependent. A good process begins by accepting the participant as who he or she is at the outset. The outcome needs describe the desired goals and objectives of the party which will allow that person to feel the issues are resolved. As we will see, these outcome needs are developed by analyzing the interests of the party and moving beyond the stated positions which have sustained the conflict.
The core of the collaborative process is to facilitate the making of agreements. To be effective in this role, it is necessary to make a mental shift in the mindset that one brings to viewing both the nature of the conflict and the elements inherent in the personalities, characteristics and resources of the parties.
Bonnie is a member of the North Jersey Collaborative Law Group, as well as the New Jersey Collaborative Law Group . of Central New Jersey.