The alternative dispute resolution or mediation process is an outstanding alternative to our overburdened courts. Mediation, whether it be voluntary or mandatory, allows all parties to present their arguments in a less intimidating and non-threatening atmosphere that ultimately fosters better relations between parties. Additionally, mediation tends to be more cost efficient and expeditious when compared to judicial proceedings, which also allows parties more flexibility in negotiating and developing the most appropriate resolution for all involved.
While a judge wields the most power and control in a court proceeding, a mediator serves as an unbiased guide who assists parties in analyzing, addressing and ultimately resolving their own disputes or at least bringing the dispute closer to a resolution. A mediator may be likened to a facilitator who allows parties to more openly express their views and arguments, while encouraging respectful communication between parties and guiding them to an acceptable resolution and/or compromise.
The less formal mediation process also provides parties with the ability to introduce and discuss information that may not otherwise be admissible in court. In mediation, an expert neutral understands that disputes are driven by a variety of factors, which will likely have an effect on the proceedings, be it emotionally, legally, financially or professionally motivated. Generally, parties who agree to voluntary mediation demonstrate a willingness and desire to bring disputes to an end. On the other hand, some parties involved in disputes may view mandatory mediation as a futile exercise, however, many times the right mediator may be able to bring otherwise hostile parties closer to a compromise.
The resolution of large disputes tend to start with the resolution of even the most minute detail. Allowing parties to resolve the smaller issues first usually gives them the confidence to tackle the larger issues later on. A good mediator listens to the parties’ concerns, endeavors to understand each party’s needs and helps them identify the root of the issue and what may, can and should be done to address their disputes. Additionally, this process is unique in that although it gives parties the freedom to negotiate their own resolution, parties may attribute the ruling or judgment to the mediator thereby placing responsibility for the end result onto a third party, which may make better business sense strategically. Moreover, typically at the end of the process, the flexibility of alternative dispute resolution allows parties to end their experience feeling reasonably satisfied and accepting of the ultimate solution which consequently allows feuding parties to continue business relations thereafter.
When entering mediation, parties should ideally be open to discussing the matter at hand and provide sufficient background to the dispute. Furthermore, each side should be willing to listen to opposing views in order to gain a better understanding of the each party’s rationale. Mediation is truly a unique and powerful tool that encourages parties to develop a resolution most acceptable to all involved. It is a beneficial but underutilized tool that more parties should consider should they ever be involved in a litigious situation. Keeping an open mind about mediation may make a difference not only to your calendars, but ultimately in your pocketbooks.