What is Mediation and How Does It Work?

Mediation is a tool that anyone can use to resolve disputes without going to court. Mediation falls under the formal category of “Alternative Dispute Resolution” since mediation is an alternative to the traditional adversarial method of battling issues out in court.

Why Choose Mediation?

Traditional adversarial methods of resolving disputes have several disadvantages:

1. The parties are pitted against each other and are discouraged from communicating or working together;
2. Disputes often take years to resolve;
3. Many tens of thousands of dollars are spent in attorney’s fees and;
4. An unresolved dispute is often an ongoing source of anxiety and stress for the parties and their families.

The use of mediation has gained in popularity in recent years because of the advantages mediation offers over traditional adversarial methods. Parties who use mediation typically spend thousands of dollars less on their dispute and attorney’s fees and they are able to reach a resolution that feels fair to them in far less than time than is generally possible with traditional court methods. These advantages translate into greater satisfaction with the outcome, more time and money available to the individuals and less stress in the lives of the individuals and their families involved in the dispute. So what exactly is mediation and how does it work?

Mediation is essentially a settlement negotiation between the parties that is facilitated by a neutral third person. The neutral third person is known as the mediator. The mediator helps the parties have productive discussions with the goal of finding solutions to the parties’ problems and helping them reach an agreement. The mediator does not act as a decision-maker for the parties (like a judge or arbitrator would), or as one party’s attorney (giving legal advice), but instead works with all the parties to help them make their own decisions and reach agreements together. The mediator has specialized training in conflict resolution which the mediator draws on in guiding the parties to reach creative and fair solutions that meet the needs and interests of all parties.

What Kinds of Issues Can Be Mediated?

Many types of issues and disputes can be mediated. These include divorce and family issues, estate planning and probate matters, neighbor disputes, landlord-tenant and real property disputes, medical malpractice, employment, personal injury and almost any other type of civil and consumer disputes. In addition to the resolution of disputes, mediation is also frequently used to negotiate contracts such as business and other financial partnerships as well as dissolutions, premarital agreements and other property agreements between spouses, domestic partners and cohabiting couples. The use of a mediator to facilitate friendly contract negotiations helps the parties maintain positive relationships instead of shattered relationships which may result from hostile and adversarial negotiations.

What Can I Expect During the Mediation Process?

Mediations can consist of one day of settlement discussions (half days and full days are typical) or they can take place over the course of several shorter sessions, as is often the case in divorce mediations where additional outside information may be required or ongoing custody and visitation issues are being worked out.

Any agreements which are made in mediation will be memorialized in writing. Once the written agreement is signed by the parties, it is a binding and enforceable contract. Depending on the nature of the issue, the final settlement agreement may get filed with the court to become an official order of the court. This is most common in divorce and other family law matters and not quite as common in other areas of law. In divorce mediations, the mediator frequently prepares the settlement agreement and works with the parties to ensure all of the legal paperwork for initiating and finalizing the divorce is completed as well.

Mediation’s rise in popularity as a method to resolve all types of issues is understandable, given the very real advantages it offers. Mediation keeps the decision-making in the hands of the parties and allows the parties to save time and money while reducing stress and creating enforceable agreements that meet everyone’s needs.

In future columns, I will discuss ways in which mediation can be used to reach enforceable agreements while preserving relationships in family-related matters including: divorce and custody disputes, guardianships, grandparent visitation issues, elder abuse and probate-inheritance disputes (before and after death), premarital and postmarital agreements, and many other arrangements between family members, their loved ones and their . I welcome your questions and comments.

Posted in Caregiver Support, Communicating with Loved Ones, Elder Law, Family Law & Mediation