Hollywood glamorizes the courtroom battle. As is the case with most things produced by Hollywood, reality is far removed from what appears on the screen. Litigation is frequently a drawn out process that can become frustrating for the parties involved in the case. It most often severs any future relationship between the parties. The final decision is left to the whims of a judge or jury. It is frequently expensive. There are types of alternative dispute resolution that tend to have more satisfying results for the people involved. Mediation is one such alternative.
Mediation leaves the final decision in the hands of the parties involved in the dispute rather than having a decision made by a judge or jury, who get only a few hours of time to hear and consider the case in a forum governed by procedures and evidentiary rules. The mediation process allows the parties to consider anything that might be relevant to them. This enables the parties to reach a more nuanced resolution that better meets their needs. The mediation process can be just as successful in highly contentious cases as it is in amicable situations. Mediation is especially valuable when you may want to preserve the relationship with the other party. So, it is particularly useful in divorce, custody, and business-related disputes.
Additionally, mediation is not tied to court procedures that can make a litigated case seem to drag on interminably. Also, the process of litigation tends to rack up attorneys’ fees that are greatly in excess of what you would see in mediation. This is not to say that litigation is not sometimes necessary, but it is sufficient to make one pause and consider alternatives like mediation.
What should one typically expect in a mediation? To begin with, you will have an individual as the mediator. This is a neutral party who is often, but not necessarily, an attorney. The mediator will want to get an initial lay of the land. This is accomplished through an initial appointment with the parties, an intake form, a mediation memo or letter that each party submits to describe the background and their positions on legal issues, or a combination of these.
Mediation can take place over one or more sessions. Once the sessions begin, the job of the mediator is to get the parties talking about their needs. The parties may have their own legal counsel attend with them. In the best of mediations, the mediator is there as a guide, someone to keep the discussion productive and aimed toward meeting the mutual needs of the parties. The mediator may make helpful suggestions. He or she may keep information in confidence if a party requests it. At times, the parties may need to be in separate rooms while the mediator shuttles back and forth, but often, the parties and the mediator all discuss the dispute together.
In the end, the resolution is truly crafted by the parties. They hold the creative power in the mediation because it is they who have to live with the end result.