While I proudly serve as a qualified and licensed Arbitrator and Mediator, I am particularly fond of mediation for a number of reasons. Not only is mediation the fastest growing form of dispute resolution, but the mediation process leaves the decision power completely in the hands of the disputing parties.
We, mediators, or some might call us "Neutrals," do not decide what is "fair" or "right," nor do we assess blame nor render an opinion on the merits or chance of success if the case were litigated. Rather, Neutrals acts as a catalyst between opposing interests searching for ways to bring the parties together by defining issues and eliminating as many obstacles as possible in the negotiation process.
As a Neutral, we moderate and guide the process to avoid confrontation whenever possible. We usually encourage the parties to seek concessions from each side during the mediation process.
Mediation generally begins with a joint session to set an agenda, define the issues and understand the position and concerns of both parities. This allows the parties to attack the resolution process either on an issue-by issue or group-by group basis.
The joint session is then followed by a separate caucus between the mediator and each party or their counsel. This allows each party to present their side of the story and identify goals in confidence. This process allows the Neutral an opportunity to ask questions which may serve to create doubt in an advocate's mind over the validity of a particular position.
Skilled mediators have exceptional listening and communication skills and utilize a number of techniques to create positive dialogue to assist the parties in reaching an agreement. The mediation process is successful approximately 75-85% and is typically less costly than other means of dispute resolution.
There are many benefits of mediation beyond this short list, but here are a few of the obvious ones:
Cost - While a mediator may charge a fee, the overall mediation process is generally far less expensive and faster than heading to court. Less billable hours means spending less money on legal fees.
Confidentiality - While court hearings are public, mediation remain highly confidential and is not a matter of public record. Most Neutrals destroy their notes at the end of the session.
Informal - Mediation can be far less intimidating and stressful than going to court or sitting in front of an Arbitration panel. Since there are no strict rules, this flexibility allows for the parties to engage in a meaningful dialogue on their terms with a high probability of a successful resolution.
Control - As I stated earlier, the disputing parties are in control because there is not Judge or Arbitrator present. Both parties are in the driver's seat and the Neutral is there to help guide you.
Higher Satisfaction - The odds are in your favor of a positive outcome, especially if there are motivated parties to work together along with a skilled Neutral to facilitate the process.
Compliance - The final resolution is ultimately determined by the parties and not the Neutral and because it is mutually agreeable, compliance with this agreement is usually high. Furthermore, the parties rarely have to spend money to enforce this agreement, because the mediation agreement is fully enforceable in a court of law.
Support - Skilled Neutrals understand how to navigate in challenging situations and know how to deal with volatile personalities. Skilled Neutrals are creative, good listeners, strong communicators and are highly motivated to help the parties explore the various options that are available to resolve the dispute.
Mediation allows both parties to be in control of their destiny and the process eliminates the risk of an unknown outcome by "taking your chances" in the courtroom.