Seven Main Reasons to Consider Mediation Versus Court Proceedings

One of the fundamental advantages of Mediation over court proceedings is that Mediation’s goal is to help resolve a dispute by doing the following:

Identify, Clarify, and Prioritize Their Perceptions and Interests

Many family disputes that I have mediated have dealt with the writing or execution of necessary end-of-life documents such as a Will, Disposition of Remains, Durable and Medical Powers of Attorney, End of Life Choices, etc. Different members of a family often have extremely divergent positions and interests when it comes to their parents making decisions and completing these documents. Rarely are all grown children in a family equal in wealth, education, or views of life. Therefore, elderly parents often face painful obstacles in this inevitable process. Mediation enables Parties to determine what it is that they want, what is necessary, and what is obtainable in deciding such family and estate issues.

My mediation discussions with families have often revealed high levels of emotion among family members. These emotions could a clear view of common, critical interests. Often, such emotion is based on personal pain suffered in relationships with other family members. Such pain can display itself as the driving force in many other aspects of their family life. On one hand, some members of a family, particularly Mom and Dad, simply want to get these end-of-life documents written and have family members get along at the same time. On the other hand, some family members are often driven to reject all others’ proposals. A younger sister may refuse to accept her oldest brother as the executor of their parents will estate because her brother was, “a real snot to me until I left home and stopped the pain”. Another family member may spend an extraordinary amount of time, effort, and money to prevent the dividing of estate assets as written in a parent’s will. Because of perceived past “wrongs”, such aggrieved family members may say, as one once said to me, “I don’t care if I ever get spanked, as long as HE (his brother) gets spanked!”

Mediation succeeds when it shows the value of moving past the emotion that creates the painful circumstances in which the family has functioned. This enables the Parties to identify and to focus, often for the first time, on family interests as a whole and to support those interests. It also enables the Parties to much more easily do the following:

Explore Options And Alternatives BY Moving Beyond Predetermined Positions

Similar emotional events in commercial life often drive antagonistic business or contractual disputes. In the business disputes that I have mediated, they often have been unnecessarily exacerbated and clouded by a contractor’s and/or a customer’s so-called “rudeness and noncaring attitude”. A legitimate contract dispute, say, over the incomplete or greatly delayed remodeling of a kitchen that resulted in the customer’s refusal to pay the bill on time, is often enlarged by a party who has been emotional offended in the process. Mediation helps offended parties to identify the emotional aspects of a dispute as obstructive to the resolution process and then to put aside hurt feelings and, finally, to search for a business solution to the dispute. That said, it is sometimes very difficult for the Parties to abandon emotions in order to move beyond predetermined positions. As on Party in a business mediation, who felt hurt emotionally by the other Party’s actions, concluded, “I will end this dispute (over $14,000) right now. I will accept one dollar in damages AND a written apology from the other Party for his rude and uncaring attitude.” Not surprisingly, the proposal was accepted immediately, and they both walked away. However, rarely are these the circumstances. Mediation usually enables the Parties to move past predetermined positions and do the following:

Engage in Individual And Collective, Creative Problem Solving

With emotions moved aside, identifying, clarifying, and prioritizing the man issues of the dispute become much easier for both Parties. They may then successfully find solutions to the “real” problems. Those solutions may be displayed in an acceptable percentage of the assets in dispute going from one Party to another. They also may include additional efforts by one Party to resolve attendant, yet still important, problems arising from the dispute. For example, it was agreed upon in my mediation of the execution of a woman’s vague will, that the deceased mother’s five silk dresses and three skirts will be given to the older sister because they fit her better than they do the younger sister, and mother’s wedding ring will be given to the younger sister. This problem solving approach in Mediation creates the environment for the following:

Enables The Parties To Control The Outcome While the Mediator Focuses on Facilitating The Process.

Importantly, a Mediator’s main function is not to determine a solution or outcome for the parties. That is what an Arbitrator or Judge does after hearing both sides’ arguments. Also, a Mediator is not a Party in the dispute. In all my mediations, I avoid “taking sides’ or proposing solutions. I frequently pose the following questions to the Parties: “What do you think of what the other Party just said?”, or “What do you think of his/her suggestions?” This engages the Parties, one with another, and enables THEM to resolve the dispute.

Mediation’s functions, underlined and explained above, contribute greatly to success in the dispute resolution process. These clarifying, prioritizing, alternative exploring, and creative problem-solving functions are extremely valuable to both parties because they accomplish the following as well:

Speed Up The Process Versus Lengthy Court Proceedings;

Saves Money For All Participating Parties.

Time is money—for businesses, customers, families, and individuals, I have seen a constant desire by the most informed and focused Parties in Mediation to end the dispute quickly. A powerful motivation for resolving a dispute through Mediation is that even if a Party does not get 100% of the money or considerations that the Party may have demanded in the beginning, by resolving the dispute quickly, the Party can often come out even or ahead on the economic and, as well, the emotional balance sheets. Most of my mediations have shown this to be true, As well, more peace of mind and of heart usually comes from mutually agreed-upon resolution than comes from “victory”.

Another strength in the Mediation process is that while flexible and creative efforts engaged in by the Parties may produce an innovative and successful solution to the dispute, their efforts may reveal facts that the Parties may not want anyone else to know. The Mediation process does the following:

Ensures The Confidentiality of All That was Discussed

Confidentiality enables the Parties to explore and find solutions that will be unique to their dispute resolution outcome and will not be discussed outside the Parties themselves. This allows one Party to give to the other Party “a break” or to make a business exception in their case without having to reveal this to other customers or to other parties. Confidentiality is a foundation stone of the Mediation process.

If any of these Seven Reasons To Consider Mediation Versus Court Proceedings suggests to you that you should seek Mediation as a method to resolve any dispute, now or in the future, it would be beneficial to you to contact me to discuss the possibilities.

Leave a Comment