Can Mediation Really Overcome Impasses and Achieve a Resolution?
In mediation, the disputing parties work with a neutral third party, called the mediator, to help resolve their disagreements or overcome an impasse. The mediator is neither a decision maker nor a judge. Rather, the mediator helps the parties reach their own resolution. The role of the mediator is to interpret concerns, relay information between the parties, frame and reframe issues, and identify underlying interests that are important to a lasting agreement. The mediator also assists the parties in finding common ground by overcoming impasses, addressing unrealistic expectations, and exploring creative options for settlement. The mediator often assists in drafting a written settlement if one is reached.
Before a mediation commences, the mediator will contact representatives on each side to confirm that parties with authority to settle will attend, to receive position papers, and to confirm the date, time and place for the mediation conference. At an agreed date, the mediator will hold a mediation conference or session with all parties. At the beginning of the session, the mediator will review ground rules on how the session will proceed.
The mediator will often then ask the parties to agree to confidentiality and to negotiate in good faith. Generally, to encourage open communications toward settlement, discussions and submissions made during mediation process are considered confidential and not admissible in court.
After introductions, the mediator will usually ask each side to make a very brief opening statement. Then, the mediator often will meet separately with each of the parties to discuss privately interests underlying the conflict and explore possible settlement options. Here, the mediator may shuttle back and forth between the parties, clarifying interests and building on elements of consensus until an agreement is reached. Any agreement is not final until it is reduced to writing and signed by all parties.
Problems do not disappear or simply resolve themselves. And, when dealing with financial conflicts, feelings of hurt and betrayal, miscommunications, and simple disputes that have spiraled out of control, we can all benefit from a neutral, third-party, helping us to reach our own resolution.
While well over 95% of all cases settle anyway, many settle at the court-room steps, meaning that they are rushed and do not always address all underlying issues. A rushed settlement leads parties to regret their decision, and may result in further litigation because not all of those complex or underlying issues were thoughtfully addresed. With the help of a mediator, parties can take control of the dispute, and have the power to reach a resolution that is carefully drafted and lasting.
Mediators shall NOT provide legal advice. Mediators do NOT act as judges. Mediators advocate for nothing but the advantages of a settlement. An experienced mediator CAN help the parties understand the best and worst alternatives to a negotiated settlement, and more properly evaluate settlement options. Moreover, even where the parties are unable to agree on a resolution, they can benefit from mediation, which helps facilitate communications and help clarify issues.
Without full diclosure and a meaningful waiver, a mediator cannot serve in a neutral role in a case involving a party whom the mediator personally knows or has represented. In such a case, an appropriate referral will be made to select a mediator who may be more appropriate for your matter.
Mediation and dispute design consultations are provided to clients in Texas, the District of Columbia, and other jurisdictions.