The Right Way to Resolve Disputes

The Right Way to Resolve Disputes

Mediation: The Right Way to Resolve Disputes

Every year I post a blog about a mediation process in hopes to convince anyone who is contemplating a divorce to do it through mediation.

I would like to convey to my readers why mediating a divorce is a much better alternative to using divorce attorneys.

We encounter disputes in every sphere of our lives. We may have family disputes, community disputes, workplace disputes and business disputes. If those are not resolved quickly, they feed on themselves, creating greater anger and frustration for all involved. The longer our disputes last, the more energy, time and money they waste us.

Although we all know this, it is often hard to settle these disputes by ourselves, because our emotions and egos frequently get in the way. Fear can be another big obstacle. We may not want to offer a settlement because we are afraid that the other party will think we are weak. We also might be afraid that we may say something in the settlement discussions that could be used against us later on. There are other obstacles as well.

Lawsuits and arbitrations can be even worse; they are very expensive and time consuming. In the end nobody really ever wins in a lawsuit or arbitration.

Fortunately there is a way out of this quandary, a way that will save you time and money and will give you more satisfaction with the end result. Mediation is that way. It is the proper way to resolve disputes because mediation gives the right results at the right time and at the right cost.

Mediation gives the right results:

First, mediation results in a settlement that is based on the interests of both parties. The parties, with the assistance of a mediator, will be able to craft a settlement which will satisfy their most important interests.

This is a major improvement over litigation where the remedies are often limited and rarely meet the real needs of the parties.

Second, only you determine if the proposed resolution is a right one for you. No one can force you to accept a resolution that you don’t agree with. Contrary wise, in a lawsuit or arbitration, somebody else -a judge, jury or an arbitrator will impose the resolution on you. You won’t have any say in it.

Third, mediation allows you to keep your relationships civil. Nothing destroys relationships faster than the adversarial process we find in a lawsuit or arbitration. Any mutual understandings that may have existed at the beginning of the dispute will be destroyed by the end of the lawsuit or arbitration. But mediation is not an adversarial process; it is solely aimed at solving your problems. The mediator helps the parties define the problems giving rise to the disputes, and then to find the right solutions to all the issues. This problem solving process allows the parties to preserve their relationships more successfully than in a lawsuit or arbitration.

Mediation resolves disputes at the right time:  

Every dispute is unique, and there can be no general rule about when it is best to resolve it.

Mediation process is so flexible that it can adjust to the timing needs of the parties. When speed will be helpful, mediators can convene the mediation promptly and efficiently and bring the parties to the solutions in the shortest possible time. However, when more time is needed, a mediator can adjust and schedule the mediation to a more appropriate moment.

The bottom line is we can convene the mediation at the best possible time frame. The whole mediation process can proceed at the time and pace which will maximize the chances for a successful resolution. There are no arbitrary schedules or deadlines.

Mediation resolves disputes at the right cost:

Everyone recognizes that litigation or arbitration is extremely expensive. Attorneys’ fees are not the only things that you need to pay for. For example you also have the cost of deposition transcripts which may be as much as $1000.00 a day. In some litigation, the cost of document production and electronic discovery can exceed the cost of depositions.

There are also the other costs that are not so easily quantifiable, but nevertheless equally important. One of the greatest costs is the time you lose. When you become embroiled in a lawsuit or arbitration, you will have to spend hours with your lawyers just to fully explain all the facts of your case to them. You will spend a significant amount of time preparing for depositions and reviewing documents produced by you and the other side.

All of this time wreaks havoc with your work and personal life. This process will occupy a lot of your time and attention, will almost inevitably prevent you from being productive at work, and also will interfere in having satisfying relationships with your family and friends. Finally you should consider the emotional cost of litigation. Being involved in a lawsuit or arbitration is one of the most stressful events in your life.

Mediation, in contrast, can sharply reduce all these financial and emotional costs. For example, not having to hire two attorneys to litigate your case significantly reduces the costs associated with the divorce process. Emotional costs are likewise limited.

Why does mediation work?

Mediation works so well because of several factors: 1. The parties themselves control the terms of the resolution, 2. The process focuses on the real interests of the parties, 3. Mediators help the parties identify the nature of the obstacles to settlement and to overcome them, and 4. The process is always flexible and capable to adjust to the needs of the parties and the nature of their dispute.

Mediators don’t decide who is right or who is wrong in each particular case. Although they may make suggestions during the course of the mediation, they don’t tell the parties how their dispute should be resolved. The terms of a settlement are ultimately up to the parties themselves. This right to determine the terms of the settlement not only gives the parties a sense of empowerment, it also gives them a satisfaction with the final result.

As facilitators, mediators help the parties focus on their respective interests. Without the assistance of trained mediators, most people will get stuck in defending their own positions while losing focus on the long term interests. But, experience has shown that people are more likely to reach a mutually acceptable resolution to their dispute when they focus on the interest involved rather than just their positions.

Furthermore, a mediator can demonstrate to the parties what kind of obstacle may be preventing them from reaching a settlement – whether the obstacle be psychological, factual or process. Once the parties know what the obstacles are, they will then be able to overcome them with the assistance of a mediator.

Finally, mediators can adjust the process to meet the needs of the parties and the dispute. They can help the parties gather the information needed before a settlement can be reached. Mediators can alter the mediation format to accommodate the needs of the parties. The scheduling and duration of the mediation can also be managed by the mediator to maximize the likelihood of a successful outcome.