Solutions First Mediation Summary

To understand what mediation is, it is important to understand first what mediation is not. Mediation is not like litigation or arbitration. As most of know, litigation is a highly structured, court-based process, that culminates in a trial, with one party winning and one party losing. Briefly, arbitration is like an informal trial. The arbitrator, after listening to each party present evidence and cross-examine one another, enters an award for one side and against the other. Mediation, in contrast to both of these procedures, is not judgment based but rather derives from the win-win principles of negotiation.

Mediation, first and foremost, is a negotiation process. The end result of mediation is a legally enforceable contract; not a third party ordered judgement. It is the end contract that puts "teeth" in the mediation process. The mediated approach to resolving disputes undeniably challenges the adversarial paradigm to which we have become so accustomed. Mediation, unlike litigation and arbitration, treats disputes as solvable problems and not as win-lose situations. What most of us often mistakenly assume is that when we disagree on one thing, we cannot agree on anything. What we fail to realize is that frequently the concerns underlying our disagreement are reconcilable.

For illustrative purposes, consider a simple hypothetical. Suppose "X" hires "Y" to repair his vehicle. X believes his vehicle's brake pads are worn. Y finds that the problem is more extensive than X believed and diligently repairs the vehicle. X, amazed that the bill is more expensive than he anticipated, refuses to pay the bill. Y prepares for a legal battle. What Y does not know is that X's primary reason for not paying the bill is that X is experiencing financial difficulties due to a recent surgery. What X does not realize is that Y would like to retain X as a customer because Y knows that X works in the automobile industry and might be able to provide Y with future referrals. Through mediation, X and Y would be able to arrive at a mutually beneficial solution by discussing these "underlying concerns" either with one another or with the mediator in private sessions. On the other hand, if X and Y were to engage in a legal battle, their dispute would revolve around payment of the bill. Under our rules of evidence, X's and Y's underlying concerns would most likely never be addressed as they would be deemed "irrelevant".

The mediator's role is to guide the parties to the contractual resolution of their differences. Initially, the mediator will ask each side to present his or her version of how the dispute between them evolved. Often times, the mediator will meet separately with each party to discuss matters the respective party is uncomfortable disclosing in the presence of the other party. At the conclusion of the mediation, the mediator will prepare a Memorandum of Agreement, which summarizes the final win-win solutions to which the parties have consented.

The advantages of mediation are numerous. Principal among the advantages is that mediation gives the parties the ability to communicate directly with one another. They are able to prevent unintended miscommunications by expressing their ideas in their own words and in their own way.

Another advantage of mediation is its flexibility. The mediation process enables the parties to choose where they want to meet, when they want to meet, and how often they want to meet. The parties can include whomever they want in the mediation sessions. Additionally, mediation discussions are not limited by rules of procedure or evidence, allowing the parties to discuss the "heart" of their conflict immediately and freely.

Yet another advantage of mediation is its confidential nature. The parties must agree to keep their discussions confidential, promoting full and open disclosure. The parties can then brainstorm creative solutions to their disagreements.

Finally, mediation overwhelmingly proves less timely and less costly than litigation. Mediation eliminates the formalities of a lawsuit and, consequently, avoids many of the legal fees and costs associated with litigation, e.g., filing fees, service of process fees, court appearances, depositions, etc.

I hope this summary of mediation assists you in your understanding of the process. Please do not hesitate to contact me if you have any other questions or comments.

Very Truly Yours,
Robin L. Hoberman