In yesterday’s post, I noted what mediation is NOT. Well, this is what mediation IS:
Mediation is a Conversation
- Put simply, the role of the mediator is to facilitate a conversation between the parties
- The mediator is not there to listen to testimony like a trial or arbitration. Albeit “heated” at times, a mediation session is conversation focused.
Mediation Allows Parties to Get to the Heart of the Issue
- Parties involved in litigation are rarely arguing about what they are really arguing about. Mediation gets past the parties’ “positions” to focus on the underlying issues.
- In the family law context, issues that may not be heard or negotiated in court may be discussed (e.g., pet visitation agreements).
Mediation Allow for All the Parties in the Dispute to Get Involved
- Mediation is not restricted to only 2 people; an unlimited amount of persons can be involved in mediation. This may be especially useful in certain situations.
Mediation is Not Legal Advice
- Many but not all mediators are also licensed attorneys; however, it is paramount that attorney mediators never wear his or her attorney hat when acting as a mediator
- Mediators should recommend that the parties involved seek their own individual attorney (i.e., a “consulting attorney” where they can obtain legal advice according to their individual situation.
- Attorney mediators may provide “general information” to the parties in a dispute
- In the family law context, attorney mediators may then, upon mutual consent, draft the Marital Settlement Agreement, Agreed Parenting Plan, etc. Each party can then take the agreement to review with his or her own individual lawyer.
Mediation Allows Parties to Move At Their Own Pace
- Unlike the court system or arbitration, mediation allows parties involved in a dispute to move as quickly or as slowly as they wish
- Parties may voluntarily exchange financial information or discovery at a timeline agreed by the parties
I believe that mediation is a powerful and effective way to resolve disputes. When companies go to war in the courtroom, it is nearly impossible for them to have a good working relationship again. It’s the same for families – how can two parents co-parent together after the courtroom war?
I recently spoke to a fellow family lawyer in a case involving a custody and visitation dispute — I said, “there are no winners and losers here.” She vehemently disagreed. I couldnt’ be further away from my viewpont on the issue. When dealing with children, litigation creates a loss for all parties. “Winning” takes places when families are able to work together through conflict for the benefit of their children.
It’s the same thing in the food and agriculture context. I’m working on a farm dispute involving family members. There is power in conversation and letting every “say their peace” to have their day in court to allow the parties to move on. Next time you’re having a dispute, consider mediation.