Mediation Alternative

Last we reviewed the various alternatives for dispute resolution.  These alternatives included:  1) One on One Negotiations; 2) Mediation; 3) Non-Binding Arbitration; 4) Binding Arbitration; 5) Court Trial, also referred to as a Bench Trial; and 6) Jury Trial.

Now we will examine mediation in more detail.  In reading the following, it should be noted that mediation is an extremely valuable and highly successful alternative for dispute resolution.  For this reason, you and your clients are strongly encouraged to use mediation whenever a legal dispute arises which cannot be resolved by way of “One on One Negotiations.”

By way of review, mediation is a private voluntary process in which an impartial person facilitates communication between disputing parties in a good faith effort to negotiate a settlement of their dispute.  The primary goal of mediation is to empower the participants to determine and control the resolution of their dispute, as opposed to other dispute resolution forums where a third party imposes a resolution upon the parties.

Beyond the advantage of self-determination, there are many benefits to mediation.  One significant benefit is that mediation offers a time and cost efficient mechanism for resolving the dispute.  This is particularly true when mediation is used at an early stage of the dispute.  It is with this in mind that the key real estate agreements include provisions requiring the parties to mediate their disputes prior to filing a lawsuit or demand for arbitration.

Another benefit to mediation is the ability of the parties to keep the dispute, as well as all related factors, confidential.  This is particularly important as there are many false and inflated claims and counter-claims that arise in legal disputes.  Whether the claims are accurate, or not, they tend to cast the parties in unfavorable lights.   By keeping these allegations to a minimum and within the protected confidence of a mediation, the parties are able to avoid the publication of these claims, as well as the resulting embarrassment.

Statistics indicate that approximately 75% to 80% of all claims which are submitted to mediation are resolved.  One of the reasons is that a trained mediator can assist the parties to focus on the real issues that separate them.  This is important as parties to a dispute frequently allow their emotions and misperceptions to cloud their judgment.  Whether the misperceptions relate to the merits of their case, or the intentions of their adversary, the parties to a dispute stand to benefit from the calm and objective insights of a trained mediator.  This influence enables the parties to keep their resolution efforts on track and avoid getting derailed by miscommunications or irrelevant issues.

Similarly, through the mediation process, the parties are afforded a controlled environment within which to express their positions and air the tensions which have grown through the course of the dispute.  In many disputes, money is not the issue.  Rather the parties want to be heard and validated.  A trained mediator can fulfill this need, so the parties will feel a sense of release which, in turn, enables them to be more open-minded to settlement alternatives.

In considering the foregoing advantages, it should be evident that the quality of the mediator plays an important role in the potential success of the mediation.  These days, everybody wants to be a mediator.  It is the “en vogue” thing to do.  In reality, however, mediation is a very delicate process.  It requires innate skills of sensitivity, patience and communication.  In addition, a successful mediator requires mediation training and experience, along with a working knowledge of the dispute’s subject matter.

Absent these qualifications, there is a risk that the mediator will not only fail to help assist the parties in reaching a resolution, but actually create further and more complex problems.  For this reason, great care should be given to the selection of the mediator.  Most attorneys who practice regularly in real estate matters can be a source of information concerning qualified mediators.  Regardless of the party from whom a particular mediator is referred, you should carefully scrutinize that mediator’s training, experience and demeanor.

Assuming you have the right mediator, then there is very little down-side to mediation.  On the other hand, as noted herein, there are substantial benefits to this process.  Hopefully, you will be able to avoid disputes or resolve them through One on One Negotiations.  If, however, you are faced with a legal dispute which cannot be resolved, you should view mediation as the best option for resolution of that dispute.

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