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Mediation: Art of Compromise

By Julie A. Dialessi-Lafley, Esq.

Mediation. Most, if not all of us, have heard the word, but what does it really mean to engage in mediation?

Many people familiar with mediation may think of it in the context of divorce or family-law matters, and, indeed, the process often provides families in conflict with meaningful solutions. But families aren’t the only ones who can benefit from the skills of a trained mediator. In fact, almost any issue or dispute that might be addressed in court could also potentially be solved by mediation.

Mediation is a process in which two or more parties discuss their disputes with the assistance of an unrelated third party — a trained mediator. The mediator assists the disagreeing parties with communication and with the terms of any settlement of the disputed issues. Resolution by agreement is the goal.

Mediation can be used for all kinds of disputes. Many couples facing divorce choose to engage in mediation rather than a court process. Issues of neighbor-to-neighbor disputes are ideal for mediation, and many schools use mediation internally to resolve student-to-student conflicts. Mediation can also address disputes involving business transactions, accidents or injuries, construction, workers’ compensation, employment issues, or labor and community relations. Almost any matter that does not involve complex procedural or evidentiary issues could be addressed through mediation.

Another appealing aspect of mediation is the relatively low cost. Mediation is normally more cost-effective than litigation in court, and certainly it is far less formal than a court process.

Mediation can take place at nearly any stage of a dispute. Conflicting parties may be able to avoid litigation altogether by mediating disputes prior to filing a court action. However, even once litigation is filed, mediation is usually still an option. If the parties agree to engage in mediation while a case is pending, they can do so in a good-faith effort to find a solution outside the courtroom. The parties can also opt out of the mediation process at any time.

Here in Massachusetts, the courts generally cannot order parties to engage in mediation. However, if an existing agreement, contract, or other independent rule requires mediation prior to litigation, the court may be precluded from hearing a matter until the parties attempt to resolve their dispute in mediation.

In fact, the courts tend to favor the mediation process and encourage parties in civil disputes to work toward their own agreements. If litigation is pending, but the parties come to an agreement through mediation and present it to the court, that agreement is likely to become the official order or judgment of the court. If only this writer had a quarter for every time a judge said to litigants, “you are better off trying to come to an agreement you can live with than to let the court decide.”

Unlike a judge or arbitrator, mediators do not decide the outcome of the dispute. They assist the parties to air their differences, identify the strengths and weaknesses of their respective sides, and find a resolution that everyone can live with.

For some people, a common misconception is that by going to mediation they will be giving up rights or forced into an outcome with which they don’t agree. For other people, a desire for the proverbial ‘day in court’ may be enough to keep them from engaging in mediation. In fact, the mediation process allows for a considerable amount of flexibility, and the mediator will design the process around the needs of the participants.

But what is the actual process like? For a typical day-long mediation, the experience normally follows six stages, each with a specific purpose.

Mediator’s Opening Statement

With everyone in the same room, the mediator makes introductions; explains the goals, expectations, and rules of the mediation; and encourages respectful dialogue with the goal of resolution.

Parties’ Opening Statements

Each party has an opportunity to give their perspective of the dispute without interruption. This can include the facts, impact, and general ideas about resolution.

Joint Discussion

Parties may remain together to begin dialogue on the issues, respond to opening statements, and engage in more in-depth work with the mediator. Normally this is determined by the conduct and emotions of the people in the room, and the mediator’s perception of their ability to work together respectfully in the same room.

Private Caucuses

Parties are placed each in separate rooms, and each is given time to meet privately with the mediator. This may continue for the majority of the in-depth work. The mediator, through this private discussion, determines the appropriate way to proceed.

Joint Negotiation

After private caucuses, parties may come back together to communicate directly. However, this does not usually happen until a settlement is reached, or the time scheduled for the mediation ends.

Closure

If the parties reach an agreement, the mediator will likely put the main provisions in writing and ask each side to sign it. If the parties are unable to agree at the time, the mediator will help determine if they want to work toward a solution within mediation.

Conclusion

Mediators are normally patient, persistent, and have plenty of common sense. Effective mediators are good listeners and negotiators, and they’re understanding of human nature. A mediator has to be articulate in order to accurately restate and relate to the positions of the conflicting parties. They may be attorneys, laypeople with training or certifications, volunteers in court-sponsored programs, privately retained, or even retired judges. Attorneys who are also mediators cannot represent one side or another, nor can they give legal advice while in the role of mediator.

One of the most important roles of the mediator is to help the parties understand that accepting less than what they may feel they ‘deserve’ is essential to a fair settlement. As the old saying goes, ‘if everyone walks away feeling slightly unhappy with the agreement, it is probably a fair agreement.’

Despite everyone walking away slightly unhappy, mediation is typically successful and satisfactory. Statistically, parties are more likely to abide by an agreement they reach on their own than an order from a court. The nature and structure of the mediation process results in its high success rate.

Attorney Julie Dialessi-Lafley is a certified mediator and a shareholder with Bacon Wilson, P.C. She has extensive experience with all aspects of family law, including pre- and post-nuptial agreements, separation, divorce, child custody and parenting time, and grandparents’ rights. In addition to family law, she represents clients in matters related to accidents and injuries, civil litigation, and probate and estate planning; (413) 781-0560; [email protected]