Mediation week is once again upon us. Last year, the Cherokee County Board of Commissioners proclaimed the third week of October as “Mediation Week” and the American Bar Association continues to designate this week as such.
When parties hear they must mediate their case prior to a final hearing or a trial, their first thought or question is generally, “Why?” or more likely “Are you kidding me? Why should I have to pay the mediator and my attorney to try to settle my case when I have not been able to reach an agreement in months or even years?” or “I’m not going to settle because he, she, they or it are wrong.” The simple answer is because mediation is statistically quite successful.
Mediation has and can resolve the case and bring months or years of litigation and financial and emotional expense to an end, even when the parties had previously felt there was no hope for settlement. Mediation has been successfully utilized in a wide variety of situations and cases that one would not generally think would be receptive to such a process, such as disputes involving aging parents, same gender relationships, congregational conflicts, health care issues, complex employment matters and a myriad of other cases.
The benefits of mediation are numerous. It can be cost effective; it allows for flexibility and creativity in developing a resolution; it’s efficient; and it is confidential. It also gives the parties the opportunity, if necessary, to express their emotions and it sometimes changes wrong perceptions or provides an opportunity for new information to be exchanged. Mediation may give a party the opportunity to be heard directly by the other side; it can help parties heal from hurt feelings and enable them to walk away from all the emotions that surround fault; it can help parties evaluate options; and it can preserve or terminate relationships more amicably. Mediation can also help the parties get a realistic understanding of their case. Parties to a mediated agreement are more likely to adhere to the terms of the agreement since they are the ones that developed the agreement.
The mediator will seek to assist the parties in reaching a mutually satisfying resolution to their conflict by facilitating the discussions and/or negotiations between the parties. The mediator focuses on the interests and needs of each party, as opposed to their positions, rights or desires. The final outcome is one agreed upon by the parties. In many cases, the parties will feel their voices have been heard and understood, and they have found a way to move forward.
So what may make a mediation successful? There are a number of factors that lead to a successful mediation. A few that seem to play a part in every mediation are:
- Treat everyone with respect, even if the parties disagree with the other’s rendition of the facts or there is animosity between the parties. No one wants to participate in reaching a resolution if they feel they are being treated poorly or called names.
- Patience, patience, patience. Mediation takes time. It takes time to work past hurt feelings or wrongs, as well as for parties to express their feelings, views, positions and interests.
- The person who has the authority to make the agreement needs to participate in the mediation. The ultimate decision maker needs to be present or immediately available. This way everyone can fully participate in the exchange of information and events as they unfold during the mediation, as well as have the opportunity to and express opinions, concerns and ideas for resolution.
- The participants need to be willing to compromise.
- Information needs to be shared. Many times parties resolve their case when one or all of the participants have learned something new during mediation.
Remember, there are no joint winners in court.
As Supreme Court Justice, Sandra Day O’Connor so eloquently stated: “The courts of this country should not be the places where resolution of disputes begins. They should be the places where the disputes end after alternative methods of resolving the disputes have been considered and tried.”
Patricia A. King is a partner of the law firm Thompson, Meier & King, P.C. in Canton. King’s practice focuses primarily in the areas of Juvenile and Family Law, and she is certified mediator with the Georgia Commission on Dispute Resolution.