Wednesday, May 30, 2012

Why Does Mediation Work?

Mediation is encouraged/required in most family law cases filed in Tarrant County, Texas.  Courts want to have hearings only when necessary, and they know that mediation settles almost every case where it is used.  There are certainly some cases where nothing will help the parties to agree, but all experienced attorneys have mediated cases that reached agreements where it seemed like there was no chance ahead of time.  Mediation sometimes almost feels magical in its ability to help parties come to agreements.

Here's a non-magical explanation of why mediation works.

1.  There's a focus on problem-solving.  When mediation is scheduled, the goal is usually to reach a final agreement on a divorce or on a modification order relating to children's issues.  Sometimes, mediation is used on other issues or at different stages in disputes, but most commonly, the goal becomes to reach a final resolution.  In contrast, much of litigation is about investigation, making temporary arrangements, dealing with discovery disputes and other interim issues.  When you show up for mediation, everyone knows it's time to get down to business.

2.  A specially-trained neutral person helps both parties.  Judges are neutral, but they have a different job.  They listen to evidence and arguments and then make a decision which the parties must live with.  In mediation, the mediator does not impose any decisions.  The mediator keeps the parties talking and considering alternatives until the parties themselves reach an agreement about how they want things done.  The mediator helps the parties come to the agreement.  The mediator has been trained in communication skills to be able to listen better, ask questions and be supportive as the parties think and work through the issues.

3.  Each party gets heard.  This is a huge benefit of mediation.  Even though each side theoretically can testify and present evidence in court, there is no free flow of communication.  Rules of evidence and procedure constrict the flow of information.  Those rules are necessary for court, but they don't feel good to the parties who want their say in court.  In mediation, the mediator will listen to both parties and give them plenty of time to express what they want to convey.

4.  The process is safe and private.  Many people aren't happy about having to testify, or to be testified about, in open court.  They don't want their private lives exposed in public.  Court hearings are open to the public.  Mediations are not.  In Texas, the parties most often work in the "caucus" style, meaning that each party remains in a separate room and they normally don't see or hear the other party directly during the mediation.  The mediator goes back and forth, carrying information, offers and responses.  Most people seem to appreciate not having to confront the other party in the stressful situation of mediation.

5.  There's an end in sight.  Mediation almost always works.  When there is an agreement, the mediator prepares a written agreement which is signed by both parties and their attorneys.  The agreement is very detailed and always contains the magic words that the agreement is binding and irrevocable.  With that, judges will uphold and enforce the agreement.  The parties need to make sure they are satisfied with the agreement, because it will be binding once everyone signs.  After that, there's no backing out.

In the ordinary case, magic isn't required.  Mediation provides a safe, controlled, private forum where each party gets to be heard by a neutral third party.  Some people feel validated and some just need to let off steam.  Whatever is needed can usually be provided in the mediation process.

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