Mediation — Is It Right for You?

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February 7, 2014 by sandyonyourside

I’ll see you I’m court!!!!!!!

I’m constantly amazed at how eager people are to “tell it to the judge!” Really??  You want a total stranger to decide who’s getting custody of your kids??  You want to put the fate of your business in the hands of twelve people who may not know a financial statement from a credit card statement??  Let’s get real.

Whether you own a small business or are duking it out over child support, it’s almost always best to avoid court if you can.  Not only because litigation can be expensive, take forever, and drain your last nerve, but because litigation is always a crapshoot. There’s no such thing as a slam-dunk case.  Your case is no exception.  No matter how much evidence you think you have, no matter how right you think you are, a judge or a jury may see things differently.  And YOU have to live with the consequences.

Think of all the trials in the news every day in which a judge or a jury does something absolutely nutty.  That case could be yours.

One way to Take Control of Your Case is to keep the power of settlement in your hands.  Mediation can be a great way to do this.

In a typical mediation, a trained third party “neutral” meets with the parties privately to try to hammer out a resolution. No lawyers are necessary, but they can participate in the mediation session if the client so desires.  Mediation is confidential; the mediator can’t testify or report about anything said in mediation.  The mediation atmosphere is relaxed an informal, at least compared to a courtroom, and the formal rules of the courtroom, such as strict procedures for introducing evidence, do not apply.

Mediation is faster and cheaper than litigation–in fact many courts, like the Ohio courts, offer mediation services for free.  And mediation offers a less fraught alternative to the bruising tensions of a court battle, which is important if the the parties want or need to maintain cordial long-term relationships.  Because mediation allows the participants maximum control over the outcome, it’s quite common for mediations to result in quirky, creative solutions that work better for the participants than anything a judge or jury could award. You can read more about the advantages of mediation and how to find a mediator here.

BUT …….  Mediation is not for everyone, and not for every case.  The last thing you want is to waste time, money, and energy in a mediation doomed from the start.

Before proposing or agreeing to mediate, make sure you fully understand the disadvantages as well as the benefits.  Here are four questions to help you decide.

1.  Can I commit fully to the mediation process?   Mediation, although relatively informal, is a serious, evidence-based practice conducted by trained professionals.  It presumes a certain amount of good faith on both sides, and a certain willingness on the part of each to open up about the emotional baggage or irrational thinking that may be getting in the way of settlement.  In other words, mediation is hard work; parts of it may make you uncomfortable.  If the thought of sitting side-by-side with your opponent and airing the more subjective side of your grievances is not for you, you may be better off with a more structured alternative such as arbitration.

2. Am I on a level playing field?   Mediation works best when the bargaining power of both sides is roughly equal: that is, where neither side has a distinct advantage over the other in terms of knowledge, resources, skill, experience, etc.  Even with the most experienced mediator, gross disparities in bargaining power can skew the mediation in favor of the stronger party, which is why many states have laws that prohibit or severely restrict court-based mediation where one of the parties is a victim of domestic violence.  If your opponent is a blowhard, a bully, abusive, abrasive, and/or overly aggressive, think carefully about whether mediation is likely to serve it’s purpose of finding common ground for agreement.  Or will it just be another opportunity for a beat-down?

3.  Am I willing to be flexible?  Be completely honest with yourself here — how much are you willing to compromise?  And not just the small stuff.  Try making a list of your settlement must-haves, then imagine what it would take to give up each one.  Can you imagine your bottom line moved a little lower, or reconfigured into something altogether different?  If your answer is yes, and if you sense some flexibility on the other side, mediation has a good chance of working for you.  On the other hand, if you feel you have no flexibility in your demands, you are not a good candidate for mediation, and you may wish to explore other forms of alternative dispute resolution.

4. Am I willing to forego the alternatives?  A successful mediation results in a written agreement or proposal for a court order. It will bind you to legal obligations you must be sure you can fulfill.  Entering into a mediated settlement also may foreclose constitutional, statutory, or other legal claims that would otherwise be available to you.  As with all settlements, you should not enter into a mediated settlement until and unless you’re sure it’s right for you.  Don’t look to the mediator for an answer because the mediator, as a neutral, cannot give you individual legal advice. You may wish to retain an attorney solely to review the proposed settlement and give you an opinion. (In fact, some people have an attorney to advise them throughout the entire process, although the attorney does not attend the mediation and remains in the background.  This is still cheaper than full-blown litigation.)

Not every mediation will result in a settlement, but even when mediation fails, you will have gained a better idea of the strengths and weaknesses of your and your opponent’s cases, and you may even have cooled down some of the heat of the controversy.

Mediation can be a satisfying way for people representing themselves to Take Control of their Case.  But with mediation as with every other kind of professional service, the most well informed consumer is in the best position to succeed.

Until next week,

Sandy Lundy

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Disclaimer

This blog is for informational purposes only and does not constitute legal advice. Also, it does not create an attorney-client relationship between the author, Sandy Lundy, and any reader or correspondent.
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