Sometimes we’re forced to face problems that feel like they’re beyond solving. Whether it’s a divorce, issues dividing a family estate, or a dispute over a contract, at some point, we all run into a problem we can’t solve on our own.
When this happens, most people think that their only option is litigation. But there are several alternative options available. These options can save time, money, stress, and protect privacy.
Alternative dispute resolution (ADR) is an umbrella term that incorporates several informal and semi-formal resolution techniques that can help you and the other party come to an agreement without having to resort to litigation.
These techniques include (but are not limited to) negotiation, conciliation, mediation, and arbitration. Mediation and arbitration are the most common techniques.
Both techniques share a goal to resolve disputes and capture the terms of that resolution in a signed agreement. But they have different means and applications.
Mediation is the more versatile of the two techniques and will be the focus of this article.
What kind of experience have they had with cases similar to yours?
Do they have references from previous clients they can share?
What type of training have they received?
What was required in their training?
3.2. Types of mediation
There are several styles of mediation. You may find that you and the other party resonate with one style over the others.
Understanding the different types of mediation can help you develop clearer expectations for your mediator, help you decide on a mediator (who uses your preferred style), and allow you to get more out of the mediation process.
– The goal is to find a resolution based on information and understanding. A facilitative mediator will ask questions, validate views, and normalize the points made, but they will not offer their own opinions in return. These mediators mainly hold joint sessions, but do not object to holding caucuses when required.
– The goal is to evaluate the efficacy of each case. An evaluative mediator will point out weaknesses in your’s and the other party’s cases and describe how a judge or jury would react. The emphasis is on legal rights. This type of mediator will usually meet with each party individually to help them evaluate their relative position.
– The goal is to help each party recognize the other party’s needs, interests, values, and point of view while empowering each party as much as possible. Recognition is used as a tool to help transform the relationship of the parties from negative to positive (or at least neutral). A transformative mediator will hold joint sessions so the parties can offer recognition.
– Even with the highest priced mediator, you will likely spend significantly less than you would on litigation. You’re in control, so you don’t have to let the case drag on and keep paying the price. You have the power to save time and money by using your time honestly and looking for the best solution for both you and the other party.
– While the rigid ‘paint by numbers’ approach of the court helps ensure that all people are treated equally, it does not allow important nuances affect the outcome of the case. In mediation, there is no limit to the innovation parties can display in reaching an agreement.
– Disputes can ruin relationships. And in court, when you’re pitted against each other, it can make the animosity so much worse. Mediation encourages parties to work together to find common ground and determine a mutually beneficial solution. This helps protect the relationship, meaning any further required interactions won’t be as difficult.
– Traditional litigation is a matter of public record. But everything you say in mediation is completely confidential. If your conflict involves sensitive topics or things you would rather the greater public not have access to, mediation is a better option.
While each mediator will work based on their preferred workflow and style (facilitative, evaluative, transformative), the overview of the process remains largely the same.
Before booking your mediation session there will likely be a preliminary phone call with the mediator (or their assistant) to go over background information related to your case.
Be prepared to talk in depth about the situation, but note that some mediators will ask for more details at this time than others. Most mediators will keep the conversation brief. You may also be asked to collect and submit relevant documents at this time.
Next, you will schedule an in-person meeting to discuss the situation in even greater detail. At this time, the mediator will let you know what to expect from the rest of the process.
For instance, you will likely find out during this meeting whether the mediator prefers to meet with you and the other party together or separately.
Because mediation is such a versatile process, the duration will depend on the specifics of your case and how easily you and the other party are able to compromise during your sessions.
On average, mediation takes roughly 3-6 months from initial contact with the mediator to the resolution agreement. Much of this time is spent collecting the necessary information and documents.
The time you actually spend with the mediator is broken down into sessions. You can expect anything from 1 to 5 sessions (average of 3) lasting 1 to 4 hours each. But you are in full control, so you and the other party can move at your own speed.
If you want to move more quickly through the process, it is important to fill out any requested preparations in advance and provide the necessary documentation.
Most mediators charge for their time by the hour. These hourly rates can vary vastly depending on the mediator’s training and experience.
For example, some mediators are also attorneys or retired judges. Mediators with this level of experience and expertise generally charge a lot more.
On average, you can expect to pay $1,000 to $2,000 per day in total, but these costs are usually split equally between parties.
So what will it cost by the end?
Let’s say your mediator charges $2000 per day and it takes 3 sessions to come to a resolution. Your total is $6000 and 3 days of stress (in addition to whatever time it takes to collect documentation).
Compare this to litigation, where the average cost to the losing party (including court fees, court reporter fees, expert witness fees, etc.) is $350,000 to $400,000. And you get (potentially) years worth of stress as your case slowly moves through the system.
Mediation is an extremely versatile process that can be used to help resolve almost any type of case apart from violent criminal cases.
While a description of several common types of mediation are included below, this is by no means an exhaustive list. Small claims disputes, senior citizen disputes, pet-related disputes, landlord/tenant disputes, and so much more can benefit from mediation.
Child custody and support mediation can be used to determine the best possible situation for children of parents who are not together. These agreements outline who has physical custody (which parent the child lives with), who has legal custody (who has rights to make life decisions for the child), and who must pay child support and how much (if anyone).
Divorce mediation can be used to determine how to divide assets between a couple going through divorce. Mediation is a more amiable way to create this division and can spare what is left of the relationship. In addition to outlining how to divide assets, divorce mediation can be used to negotiate alimony, child support, or child custody agreements.
Business mediation can be used to resolve bankruptcy, partner agreements, employee agreements, family business issues, real estate, and several other forms of business-related disputes.
Workplace mediation can be used to resolve issues that arise in the workplace. These issues could stem from perceived power imbalances, differences in colleague’s values, workplace competition, etc.
Mediation is generally a voluntary process, but if the other party decides to litigate, you have no choice. Bring up mediation as a possible option near the beginning of the dispute and discuss the benefits with the other party.
If mediation doesn’t end up working for you, you can always escalate to litigation. But if you start with litigation, there’s no going back.
7.2. Get organized
Collecting relevant documentation is often the most time consuming part of the process. As soon as you agree to mediate, start getting organized with everything you will need. It will also be helpful to start outlining your arguments on paper to help advocate your points during the sessions.
7.3. Pick a mediator
Both you and the other party have the right to choose the mediator you work with. To find someone you agree on, start looking for mediators in the yellow pages and in online directories. Search for mediators with experience in the area of your dispute (divorce, business, housing, etc), and start asking questions!
Once you select a mediator, make sure you understand the type of information they will need asap. This way, you can add anything you’ve missed to what you’ve already collected.
7.4. Make goals
Before the session, form an idea of what you want to get out of it. Decide what’s most important to you. What guns will you stick to and what are you willing to compromise on?
This will likely be the most difficult step before the session, so create a list of these desires to help you stay on track.
7.5. Keep an open mind
The foundation of mediation is compromise. Don’t let your feelings for the other party get in the way of finding an agreeable solution. Understand that both of you will have to give things up to find a resolution, and if you focus on what you can get from the other party, the mediation is unlikely to go smoothly.
Mediation is a structured, interactive form of ADR with the goal of finding the a mutually beneficial solution for two or more parties in dispute.
The processes is overseen by a neutral third party, the mediator, who will help guide the parties through their negotiations. However, the mediator has no control over the outcome; this power is held by the disputing parties.
Mediation can save parties time, money, stress, and protect privacy over litigation, and can be used for almost any type of dispute barring violent criminal offenses.
Different mediators have different training and approaches related to mediation. Asking questions early and often is the best way to find the right mediator for your case.
If you’re ready to find the right mediator in your area, take a look at the MediatorSelect directory and use the mediator selection platform.