Oftentimes, parties not only expend time and money in the pursuit of their legal action, but make a large emotional investment that can take a toll, not just on the participant(s), but family and friends as well. Because the parties don’t want to invest in more of the same, they find themselves looking for a way to end the controversy. Mediation can help reduce the financial, time and emotional toll that would otherwise be paid in the prosecution or defense of a legal action.
Mediation is a voluntary, out of court method of resolving disputes or conflict between two or more parties. By law, the mediation is confidential and the matters discussed cannot be brought up outside the context of mediation without agreement of all the participants. Many people choose this option of dispute resolution because they retain control over the negotiations and outcome; and, it is usually faster and less expensive than a formal arbitration or protracted court litigation. Mediation is particularly effective for early conflict resolution as it has the advantage of allowing both parties to suggest resolution that may not normally be available to a court or even approved by the attorneys in light of the legal positions they may have already taken.
The role of the mediator is to give parties the opportunity to state their cases and to discuss various options with each other and the mediator without the impediments of court formality or attorney involvement. The mediator remains impartial throughout the entire process and at no time passes judgment or lays blame. Instead, the mediator serves to assist the parties in keeping the lines of communication open and assisting in clarifying the dialogue between the participants.
In many cases, the parties may have already had issues with each other (usually family) that are totally unrelated to the legal nature of the case, but end up affecting the manner in which the parties move forward with the case. The mediator can help sort out these matters in respect to the current concerns for the purpose of allowing each party to understand how these matters may impact each other’s current positions and the potential resolution. The mediator helps the parties focus on their real interests and discover non-adversarial procedures for achieving their ends and avoiding litigation. By listening to each other’s respective positions, identifying interests and reframing the issues, the mediation process can allow for a more open dialogue where an amicable, mutually beneficial resolution may be found.
There are many forms of mediation and approaches. I utilize a process centered mediation that allows the parties to identify their real interests, not just the legal positions they have chosen to take. In fact, the legal aspect will often be secondary to the true concerns of the parties. But, with my experience in the probate field, if legal context is needed – that is available to the parties to mediation. I also encourage the parties to consult with their counsel at anytime during the mediation process, especially when a formal agreement will be entered.
If you or your client would like to engage in mediation, please call me or email me by clicking the link above.
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