What is Mediation? (by Sunny McGahey, Esq.)

An experienced mediator will be very effective in helping the parties to come to a mutually agreeable solution to their problem. The mediator helps the parties by identifying the key issues in the dispute, brainstorming with the parties to come up with possible workable solutions to the problem, promoting understanding of each side’s position and point of view, facilitating negotiations, and once a settlement is reached, helping to write up a settlement agreement that all parties can live with, and voluntarily stick to.

It is the mediator’s responsibility to provide a process that fosters trust, cooperation and creativity so that a voluntary settlement can be reached.

There are many reasons parties to a dispute decide to mediate rather than litigate or arbitrate. The four most important reasons are:

1. Mediation is a confidential process. All parties sign a confidentiality agreement, including the mediator.

2. Mediation is a flexible process. All parties to the dispute proceed with different stages and discussions as they see fit in order to eventually reach an agreement acceptable to all.

3. Mediation is much less expensive than litigation or arbitration.

4. Mediation is more likely than arbitration or litigation to be resolved to the satisfaction of everyone involved because all parties are allowed to maintain control over the process and voluntarily reach an agreement. Therefore, they try very hard to comply with the terms and conditions of their agreement. In litigation and arbitration, however, since a judge, a jury and/or an arbitrator maintains control over the entire process with little or no input from the parties to the dispute, the parties, especially the losing party, may not be willing to accept the decision. This gives rise to an appeal process which is expensive and can take months or years to resolve. Such procedures make the resolution of a case much more time consuming than mediation.

5. When ongoing relationships are important, such as in cases between businesses that wish to continue a business relationship, or disputes between family members, landlord-tenant disputes, or Homeowners Associations and an owner, mediation provides an opportunity to resolve a dispute in a non-adversarial way . This way these key relationships are not only repaired, but can also frequently be preserved and strengthened.

The above information is designed to be used in conjunction with an attorney. It should not be used or relied upon without consulting competent legal counsel.