Consumer Dispute Resolutions Partner, ExpertNeutral.com
The courts of this country should not be the place where resolution of disputes begins. They should be the place where disputes end after alternative methods of resolving disputes have been considered and tried.
Justice Sandra Day O'Connor
Mediation is familiar to most people as a means of resolving labor management and international disputes, but it also has been used to settle contract, interpersonal, human resource, and EEO conflicts.
Mediation involves the intervention of a third person, or Mediator, into a dispute to assist the parties in negotiating jointly acceptable resolution of issues in conflict.
The Mediator meets with the parties at a neutral location where the parties can discuss the dispute and explore a variety of solutions. Each party is encouraged to be open and candid about his/her point of view.
The Mediator, as a neutral third party, can view the dispute objectively and assist the parties in considering alternatives and options that they might not have considered.
The Mediator is neutral in that he or she does not stand to personally benefit from the terms of the settlement, and is impartial in that he or she does not have a preconceived bias about how the conflict should be resolved.
The Mediation session is private and confidential. Matters unique to the Mediation discussion have been held by Federal courts to be privileged and inadmissible in any adversarial administrative or court proceeding with the exception of certain issues such as fraud, waste and abuse, or criminal activity.
If a settlement was not resolved during a Mediation session, and the dispute was litigated in any administrative or judicial proceeding, neither the Mediator nor his/her notes can be subpoenaed by either party.
Mediation is generally going to cost you less money than hiring an Attorney, which depending on the conflict you are trying resolve, could cost thousands of dollars.
We have all heard the jokes about the only people benefiting from resolving a dispute are the Attorneys, and in many cases that is true, but is not always the case.
Divorce Mediations can cost each party plenty of money, however, generally still considered cheaper than hiring Attorneys and going to court. Many Divorce Mediations involve Attorneys & Mediators, why is that necessary you ask, parties trying to avoid having a Judge make the final decisions without their final say.
For Small Claims Court filings, you are not allowed to have Legal representation, however, once the Judge has made a ruling, you or the other party can file an appeal, and at that time you are allowed to hire Legal representation.
Even if disputants do not resolve the dispute, Mediation frequently will "bring out" the real issues and enhance communications between the parties, fostering an improved working relationship.
The goals of Mediation are for the disputing parties to:
The advantage of Mediation over more traditional complaint procedures is that it provides an environment for creative problem-solving between the parties.
Through the skilled assistance of the Mediator, disputants are encouraged to listen, keep confidences, be empathetic, suspend preconceived judgements, respect each other's values, and focus on resolving the underlying conflict.
Mediation sessions usually begin with the introduction of the Mediator to the two parties. The Mediator will provide procedural ground rules, such as making no interruptions when the other party is speaking.
He/she will explain the Mediation process including clarification of the issue of session confidentiality, securing agreement on time allocation and securing a commitment from the parties to seek resolution in good faith.
The Mediator will then explain the role of the Mediator - to be an impartial facilitator, not an advocate or Judge of either party, and to assist the parties in arriving at their own solutions.
The Mediator will proceed to facilitate the session so that clarifying questions can be asked and potential solutions can be discussed. Everyone is encouraged throughout the process to be thinking of ways in which the dispute might be settled to the satisfaction of each party.
Following the joint discussions, the Mediator will caucus as necessary. A caucus is a private meeting during which the Mediator talks with each party separately about the dispute.
Information revealed in the caucus that is confidential will not be shared in the other caucus or when the parties reconvene in a joint session unless the party providing the confidential information permits the Mediator to share it.
Following the caucuses, the Mediator will reconvene the joint session and determine if there is any area of agreement between the parties on any issue.
If not, the parties will continue to negotiate and caucus with the Mediator, if necessary, until it is clear that a settlement is or is not going to emerge at this session.
Sometimes there is a need to reconvene the Mediation on another day, or to consult with another person at a later date before an agreement can be considered.
If a settlement is reached, the parties will draft the terms of the settlement agreement that are acceptable to the parties.
If you are a business being sued in Small Claims Court, and you lose, the Judgement is Public Record that is often in the Credit Record of the Losing Party.
The Public can obtain Judgements against a Business, and those Judgements could impact whether Customers want to support that business or not. Extra motivation to not be sued, and definitely not take the chance a Judge rules against the business.
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