THE MEDIATION PROCESS
THE WHAT, WHY, WHEN AND
HOWS OF MEDIATION
WHAT IS MEDIATION?
Mediation is a way to resolve conflicts without a prolonged, expensive courtroom battle. It uses an impartial person, trained in communication and conflict management skills, to assist all sides identify the issues, explore the options and reach an informed solution suited to their individual needs.
Conflict is an ever present part of living. Ideally, those party to the conflict discuss their needs and interests and arrive at a solution that satisfies them. When emotions run high, when interests seem irreconcilable, bringing in an experienced neutral can help each party better communicate his position and better understand the other's.
Mediation is usually voluntary, always confidential, encourages cooperation and full disclosure. Best of all, the power to decide on an agreement remains with the parties.
WHY MEDIATE
It´s faster than litigation—no long delays for court dates and court procedures.
It's less expensive. The time clock isn't racking up costs as client speaks to attorney, then attorneys speak to each other, then each attorney to his client, then back to each other, and so on. In mediation, parties speak directly to each other under the guidelines set down by the mediator; the mediator speaks directly to each party and communication flows more openly and easily.
The decisions stay with the involved parties. No one can know as much about the problem as you do. Guided by the mediator, the negotiated decisions you make will be more equitable, more satisfying to all parties, than one made by a judge or arbitrator.
It is less formal than arbitration or litigation. Parties are free to express themselves in a more natural way without the constrictions of legal procedures.
It is more private than litigation. Confidentiality is protected by law. In most states, no one present at a mediation session can reveal anything that was said without the written consent of all parties should any one of the parties decide to go to court.
It allows you to control the decisions that affect your life. The mediator, unlike an arbitrator or a judge, does not tell you what you have to do. His role is to help the parties reach a solution themselves. The power remains with the parties.
It does not preclude going to court if the parties can not agree on a decision. However, mediation has a high success rate. In general 75% or more of most conflicts can be mediated to an accepted solution.
WHEN TO MEDIATE
When it is important for the parties to be on speaking terms with each other afterwards, mediation is the best approach. Lengthy litigation, a process that requires proving the other person wrong, rarely ends with parties able to relate at all.
In what situations is this important? When conflicts involve employer-employee disputes, employee-employee disagreements, owner-customer issues, parents and adult children, divorcing parents with minor children, business partnerships.
HOW TO CHOOSE A MEDIATOR
Choosing a mediator can be difficult since few states have any licensing or certification requirements for mediators. This does require your doing some homework. The yellow pages are not your best guide. Ask for the background, specific mediation training and mediation experience of any mediator you are considering. Training and experience as a lawyer, as a therapist, as a communicator, are not enough. These are all good background skills, but conflict management requires specific training.
Knowing the mediation organizations to which the mediator belongs can be informative. The major national and international mediation organizations have education and experience requirements for membership. For example, the Society for Professionals in Dispute Resolution (SPIDR) requires 3 years substantial experience as a practicing mediator before admitting anyone to regular membership. The Academy of Family Mediators (AFM) requires their Practitioner Members to complete sixty hours of training, two years 250 hours of mediation experience, and at least four hours of consultation with a AFM consultant. In addition, AFM requires their members to complete twenty hours of continuing education in the field every two years.
Bar Associations can be a source of referral. Many have requirements for membership in their "Alternative Dispute Resolution" sections. Some, like Sonoma County, CA, require certain standards of education and experience for both attorney and non-attorney mediators before they can be on the Bar´s referral panels.
Often communities have nonprofit mediation organizations. Volunteers are trained to serve and then assigned to a particular case. These organizations normally use a panel of mediators to work on a case. Fees are based on a sliding scale and tend to be less expensive than private mediators.
HOW A MEDIATION WORKS
Firstly, all parties must agree to mediate. This agreement can be arranged by the parties themselves, by lawyers who may be representing the parties, or by the mediator. At the request of one or more of the parties, Sonoma Mediation Services would handle it by sending a packet of information on mediation and on our services to each of the parties. We offer thirty minutes as a consultation at no charge to answer questions about mediation and to give all parties an opportunity to meet with us. If they chose to continue, each party (including the mediators) would sign an Agreement to Mediate that would explain our general rules, our fees and our requirement to maintain confidentiality. We give each party a copy of the California statue protecting and enforcing this confidentiality.
After this initial agreement, the mediation proceeds. It may consist of one or two long all day sessions. It may consist of a series of short one to two hour sessions. Sonoma Mediation Services adjusts the time to suit the needs of the parties and the complexity of the problem. Usually, we suggest at least two hours be set aside, especially for the initial sessions. It takes time for the parties to understand and recognize the interlocking issues and interests.
Sonoma Mediation Services prefers to use a team approach to mediation. The team usually consists of an attorney and a psychotherapist, thus bringing to you varied skills and expertise. We find that working with two mediators from differing backgrounds is the most time and cost effective way to resolve issues that arise.
When the parties have reached agreement, their decisions are written up as a "Memorandum of Understanding". When this is signed by all parties, it becomes a binding contract. It is always advisable, and we always recommend, that each party consult an attorney before signing an agreement. This provides another opportunity for each party to understand the effect of the agreement before making a commitment.
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