While it might be fun to yell that phrase at someone who has wronged you, going through the trials (pun intended) and tribulations of real litigation can be painful. Thankfully, there are other ways to resolve disputes, and a popular method is mediation.
When it comes to corporate law, businesses that find themselves in legal soups often consult with mediators and lawyers and implement specialized legal case management tools to track case details.
What is mediation?
Mediation is a type of dispute resolution in which parties discuss their dispute with the help of a mediator, which is a trained, neutral third party. The goal of mediation is to settle instead of going to court.
While the mediator helps the parties reach a solution, this does not mean they must abide by it. The only people that can resolve the situation are the parties in the dispute. The mediator is there to offer guidance and lead the conversation.
Who is involved during mediation?
The mediation process has two key roles: the mediator and the parties having the dispute.
In a dispute, there are typically two parties. The primary responsibility of both parties is to provide as much information as possible about the dispute at hand. This way, the mediator can help find the most effective resolution.
Sometimes, the parties can meet with the mediator individually before the three parties come together to discuss things one-on-one. The purpose of this is for the parties to get some practice in negotiating to have a little more influence on resolving the conflict. This situation is called party-directed mediation, requiring less interference from the mediator.
The mediator is a third-party individual or agency unrelated to the disputing parties. Their main goal is to direct the conversation in a way that will result in finding a resolution that the disputing parties will find mutually satisfactory and beneficial. The mediator does not act on behalf of any party in particular and must remain neutral.
No mediation process is perfect, and things can get off-topic or out of hand. A part of remaining neutral is ensuring neither party shows aggression or intimidation. Mediators need to remind the disputing parties that the topic at hand is most important and resorting to personal attacks will not make any progress.
Mediation use cases
Mediation is a great way to resolve various problems and avoid initiating a lawsuit. It is common for courts to require the disputing parties to partake in mediation or arbitration before beginning a trial.
While a good discussion never hurts anyone, there are some more common disputes that mediation is used to resolve.
When a conflict arises between two parties, mediation can be used to understand both perspectives, resolve, and avoid running into another conflict in the future.
Examples of mediation for conflict resolution:
Mediation doesn’t only have a place in conflicts; mediators can help families, organizations, and businesses find the best and most strategic way to move forward during a problem. For this type of mediation, the involved parties collaborate, share information, and work together to find the most suitable course of action.
Examples of mediation for strategic planning:
6 stages of the mediation process
While mediation is less formal than going to trial, there is still a process in place. Mediators and the disputing parties undergo seven steps to settle.
Opening remarks by the mediator
The mediator will help set up a time and place for the mediation, and the parties will discuss who will be present during the conversation.
Once the parties and the mediator have gathered and everyone is seated, the mediator will make their opening statement. This typically includes an introduction, the rules of the mediation, the goal they wish to reach, and a little bit of encouragement to the disputing parties to do their best to cooperate and find a way to settle.
Parties’ opening statements
After the mediator makes their opening statement, each party will have a chance to do the same. They will both go over the conflict, the consequences that arose from it, and how they are feeling about the situation. Neither party is allowed to interrupt when the other is speaking.
This stage might include the mediator requesting that each party respond to the other’s opening statement and ask any questions they might have to help them better understand the situation. This way, new information about the dispute can be introduced and discussed.
Things are likely to get out of hand and personal during the discussion. The mediator's job is to steer the discussion in the right direction.
In legal terms, a caucus refers to a closed meeting of a group of people, usually to decide on a course of action. As expected, this is typically the longest part of the mediation.
After the discussion, the mediator will privately meet with each party individually. During this stage, the mediator will talk with the parties about their position and whether or not it is a strong one. They will also exchange offers from one party to the other. The mediator can go back and forth between each party as often as necessary within the allotted time.
In most cases, the mediator doesn't bring the parties back together until a settlement has been agreed upon or the allotted time for the mediation has ended. Sometimes, however, the mediator will bring the parties together for negotiation after the private caucuses.
If the parties agree on a settlement, the mediator will typically write it, and each side will sign the agreement summary. This way, each party is obliged to abide by the settlement.
If an agreement is not reached, decisions on how to proceed will be made.
Resource: Not all conflicts can be settled through mediation. In some cases, interventions by lawyers are the best option. If you find yourself in a legal conflict, it might help to explore some legal service providers.
Benefits of mediation
There’s a reason why so many people turn to mediation before filing a lawsuit.
Getting a summons to court is no way to start your day, week, month, or even year. Yes, the emotional toll is nothing to mess with, and the process can be overwhelming. However, the financial impact can also be a burden, no matter what side of a lawsuit you are on. Legal fees, such as billed legal hours and retainer fees charged by lawyers, can amount to large sums.
The associated costs of mediation are much lower when compared to settling disputes in the courtroom.
Easy to schedule
Prolonging the resolution of a dispute is never a good idea, and mediation can get you there fast. Some court cases can take months, even years. Mediation, on the other hand, can be scheduled and held in days.
Nobody wants their issues to be brought to light. Mediation provides a private and safe environment for disputing parties to present issues, have discussions, and find solutions. Everything discussed during mediation is confidential, and the mediator remains neutral and focuses on the issue.
Creates win-win situations
The solutions that come about from mediation are meant to please each party. By addressing the needs of each party, mediation preserves the relationship between the people disputing. Other methods are more win-lose and might not leave each party feeling so keen toward the other.
Nobody likes running into conflict, and resolving it can be even worse. While there are no guarantees about the outcome, mediation can be the right choice for someone looking to settle a dispute quickly, fairly, and cordially.
Mary Clare Novak is a Content Marketing Specialist at G2 based in Burlington, Vermont, where she is currently exploring topics related to sales and customer relationship management. In her free time, you can find her doing a crossword puzzle, listening to cover bands, or eating fish tacos. (she/her/hers)
See you in the mediation room
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