The power of mediation
Mediation is a highly successful form of alternative dispute resolution. I have taken part, both as a mediator and as an attorney participating in mediation with my clients, in reaching settlement of a significant majority of cases through mediation, without trial. My specialized training as a mediator and having more than four decades of experience participating in more than 200 mediations have helped me develop my skills in this critical aspect of law practice.
Mediation brings parties in a dispute closer together by offering a safe, confidential forum for them to engage in a conversation with each other and a neutral third party, the mediator. A "true" mediator is totally neutral; that is, she does not express during the mediation her opinion of the merits of the case to either side of the controversy. The "true" mediator helps the parties define the issues, develop settlement options and achieve a mutually agreed-upon resolution of their own making. By fostering communication and interaction, she guides the parties to that outcome, without imposing her own opinions.
Frequently in mediation sessions in which each party is represented by his or her own attorney, the mediator is called upon to provide her professional evaluation based upon her expertise as a litigator. She encourages the parties to reach an agreement in accordance with applicable law, reasonableness and fairness, with particular consideration of the reality and practicality inherent in the situation at hand. This kind of mediation is sometimes called "conciliation" because, in suggesting settlement terms and providing an evaluation, she helps the parties achieve a resolution of the dispute. In my mediation practice, I have most often been asked to act as a conciliator.
Mediation and conciliation are relatively flexible processes because the parties forge their own agreement. The key to successfully resolving disputes through mediation is that all of the parties in the mediation participate in good faith to resolve their conflict.
In contrast to arbitration, mediation does not result in binding agreements unless the parties consent to an agreement that they were able to derive voluntarily through the mediation process. A mediator has no say in the outcome; an arbitrator (like a judge in court) imposes a binding decision on the parties.
I have found mediation to be the most effective way to reach accords, especially in cases involving a continuing, post-mediation relationship among the parties, such as in neighbor and adjoining landowner disputes.
