What is Mediation?
Unlike litigation, where there must be a winner or loser, mediation is quite a different procedure that works towards a win-win situation for the two parties. It is a form of alternative dispute resolution (ADR) in which the parties get to discuss and analyze their disputes with the help of an impartial third person (s). The impartial third person refers to the mediator, who’s charged with the responsibility of helping the parties settle.
The flexibility with mediation comes in that the procedure can either be a structured and scheduled one or an informal one where the parties meet to discuss. In most cases, it is a structured process where the parties may even have representatives for their interests. Disputes that fall within mediation can either be pending in court or yet to be filed. Certain disputes require the parties to have tried mediation before going to court. In Texas today, many counties hold that couples must attempt mediation before considering the court.
Asides from divorce, various other cases are suitable for mediation. They include construction, personal injury, contract disputes, community relations, employment, and domestic relations. Mediation is mostly a voluntary conflict resolution process. Unlike arbitration, where attendance is compulsory, this is not the case with mediation when it’s not court-ordered. The procedure is also cheap and eliminates many litigation troubles.
Who Is A Mediator?
A mediator is a trained practitioner with good listening and people skills. He/she has to be articulate and have a deft negotiation skill. These skills are crucial to navigating the mediation process, as the mediator will have to help the parties reach a resolution. According to Rule 5 for mediation in Texas, the mediator doesn’t decide for the parties. This is unlike an arbitrator who renders an arbitration award. All the mediator does is to guide the parties till they reach a resolution by themselves.
A mediator, in many jurisdictions, will be an attorney. However, he/she is barred from giving legal advice to the parties while acting as a mediator. The area where the expertise may be useful is in framing the parties’ agreement so that it represents the parties’ interests adequately. Noteworthy, most mediators are required to have had a specified number of training hours, as stipulated by the ethics board.
How Mediation Works?
The mediation conference venue is both agreed on by the parties. It will be a neutral place that serves the interests of the two parties. Such can be the mediator’s office or a private facility. While mediation can go on over the phone, mediators’ common approach is to make the process face-to-face.
The mediation process will involve the mediator, the parties, the parties’ attorneys, where they have representation, and any other person as may have been agreed by the parties. For community mediation, it often involves several community members.
In mediation procedures where parties have attorneys, the mediators will advise that they work with their attorneys on legal issues to make informed choices. All attorney protocols will be determined before the conference starts.
The mediator will determine whether the session should be substance-orientation (evaluative or case settlement) or process-centered (facilitative). Courts prefer case settlement for small claims cases, while the evaluative procedure is preferred in cases that involve expert opinion on the controversy in question. For a facilitative approach, the process involves the following:
- General introduction and opening discussions: The mediator will start with an opening statement detailing his or her training and experience in the field. Following this, administrative matters shall be discussed, including the session’s confidentiality, mediator’s fee, signing of the agreement, and an avenue for subsequent review. The schedule for the sessions will also be discussed with the relevant breaks. Similarly, the simple rules guiding the process shall be established.
- Determining the problem: This is the stage where the parties discuss the dispute’s material facts from each of their ends.
- Review of options: At this stage, the mediator opens the available options to the parties. This represents the stage where the strengths and weaknesses of each party’s position will be analyzed. The mediator will identify the possible areas of settlements. Unless the mediator declares an impasse, negotiations will continue.
- Agreement writing and clarity: The parties will write the agreement and all necessary terms. They may use the services of a legal counsel in framing the agreement.
Are There Penalties For Not Settling?
It is possible that parties won’t be able to reach an agreement. There’s no penalty for that. However, suppose the court orders the mediation, failure to attend may attract penalties for the defaulting party.
Where an agreement is unreachable, the case may proceed to the court. But since many people try to avoid litigation, they mostly reach an agreement during mediation.