Tuesday, April 8, 2008

Why Does Mediation Work?

Mediation is a settlement process in which two parties meet with a neutral third party (the mediator) to resolve issues in a private meeting or meetings. In Texas, the most common type of mediation is the caucus method which usually consists of one session (sometimes two), with each party having an attorney present and the sides usually in separate rooms. The mediator shuffles back and forth between rooms, conveying offers, questions and suggestions. The parties rarely see each other in the caucus approach. In other states, there may or may not be attorneys involved and the parties usually meet and discuss the issues face-to-face in mediation sessions.

Mediation began to be widely utilized in Texas to help settle litigation in the mid- to late-1980s. Since then, it has become very popular, especially with judges. It has proven effective, reasonably priced and safe for the parties. Nevertheless, I still have clients express doubts and frustration when they are ordered to go to mediation before they can go to final trial. They sincerely believe that there is no hope of settlement, usually because the other party is stubborn, crazy, stupid, angry, unrealistic, etc. I always explain (after mentioning that we have no choice if it is ordered by a court) that I have had a large number of "impossible" cases settle through the use of mediation. Let me briefly explain why mediation works.

1. Mediation brings into a dispute a neutral third party with an objective approach to the case whose purpose is to get an agreement. Whatever the mediator does is seen as an effort to reach an acceptable agreement, not to advance the interests of one party at the expense of the other party. Because of the neutrality, a mediator can make tough suggestions and criticisms which will be heard very differently than they would be if made by the opposing attorney. The mediator can also make statements that a party's attorney should (and may want to) make, but which could undermine the client's faith in his or her attorney's commitment to the client's side. It is a way for a party to receive important information, even if it is not what the party wants to hear.

2. A good mediator can de-personalize the negotiations. Again, the neutrality is helpful. A mediator will usually emphasize the value of reaching an agreement outside of court and will try to shape the sessions into more of a business decision rather than something more personal.

3. The mediator usually helps each party understand the range of options, including the best alternative to a negotiated agreement. Often in a divorce, a party starts out with a set of ideas of what he or she wants and the party is unwilling or unable to conceive of other options or any reasons to consider other options. It is difficult for the attorney for such a party to bring up other options in some cases where the party is emotionally committed to a particular outcome. Because of the neutral role of the mediator, it is possible to explain and explore other options. A mediator can also help a party come up with new ideas by brainstorming with the party.

4. An important factor for the success of mediation is that it carries a sense of finality, a feeling that the end of a nightmare may be in sight. In Texas, mediation usually occurs fairly late in the process and after information is exchanged between the parties in "Discovery". The parties are often really ready to end the litigation. One of the factors that often comes into play is that parties become more willing to compromise if they see the reward of wrapping up the divorce.

5. On a related point, when mediation occurs late in the litigation process, a settlement may be achieved because the parties may be worn down or worn out from fighting and arguing. They may be spent emotionally and so is their money. They just are not up to fighting as much as they were originally. Sometimes, they have already collected their pound of flesh and they are ready to end the divorce.

6. Mediation is usually cheaper than a trial and in many areas is a required step before trial. Stable and reasonable parties (there actually are quite a few in the world) recognize the savings they can make by compromising in mediation instead of going to trial.

7. The mediator can play devil's advocate for both parties and educate each party about possible problems with his/her approach. Creating a little uncertainty, or reality, can make the parties more open to adjusting their demands, positions and solutions. Sometimes, a party hears a contrary view for the first time from the mediator since some attorneys are uncomfortable or unwilling to disagree with their clients. Or a party may have just ignored differing opinions or suggestions.

Mediation creates an opportunity for parties to become educated about a number of things that impact of their willingness and ability to settle a case. Experience shows that amazing results can occur with a skilled mediator, even in the most difficult cases. Every litigant should strongly consider, and even look forward to, getting into mediation so they can get the right result that is acceptable to both parties, work in a less stressful, private setting and save time and money.

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