Status of Mediation What Is Mediation? Elements Of Mediation Benefits of Mediation Useful Links

Roscoe Sandlin is a trained, experienced, and certified mediator. We offer mediation services for a variety of situations, including

• Divorce
• Contract disputes
• Complex civil litigation
• Personal Injury
• Employee grievances
• Divorce settlements
• Landlord/tenant
• Neighborhood conflicts

Status of Mediation   Back to top

Over the past fifteen to twenty years, mediation has come to be recognized as an affordable and accessible means of alternative dispute resolution. It is faster, cheaper, and more satisfying than litigation. In the last five years, court-connected ADR systems have been implemented in most states. In 1998 the Massachusetts Supreme Judicial Court adopted the Uniform Rules on Dispute Resolution. The Rules require each court to designate an ADR coordinator and require court clerks to make information about court-connected dispute resolution services available to attorneys and unrepresented parties. The Rules also require attorneys to provide this information to clients and to discuss with them the advantages and disadvantages of various ADR processes.

What Is Mediation?   Back to top

It is a process in which a trained, skilled, and experienced third party neutral facilitates open communication and fair dealing between the parties. The goal is to reach a fair resolution to the dispute.

While mediation has proven to be a cost-effective and timesaving alternative to the court system, it supplements, but does not replace, court action. If the mediation does not result in agreement, the right to trial is preserved. Furthermore, the mediation proceedings are confidential. In Massachusetts, a certified mediator may not be called on to testify in court about what occurred during the mediation sessions.

Mediation involves meetings between decision-makers from each party, and one or more mediators. Each side has the opportunity to present its position on the issues, and to hear the position of the other side.

The mediator, who is neutral and unbiased, facilitates the discussion in a way that helps address the fundamental interests that underlie each party's position. The mediator may assist the parties in evaluating the strengths and weaknesses of their positions, and in analyzing the risks of litigation. The goal is to reach a fair, equitable, and binding agreement that is not "win-lose."

Elements Of Mediation   Back to top

Successful mediation has the following five elements:

1. An impartial third party facilitator.
   
   The third party neutral, the mediator, is the person who makes the entire process work. The facilitator is not involved with any of the parties, has no stake in the outcome, and is committed to assisting the parties to reach resolution of the dispute. The parties can be assured that their information is confidential and that an interested party is not pushing them into an agreement. The third party facilitates, not decides, by aiding the parties in a neutral fashion to help them find their own best interests.
   
   
2. Confidentiality
   
   The mediator is obligated to protect the confidentiality of the proceedings. He or she does not usurp the rights of the parties to disclose, or not disclose, information. The mediator preserves the integrity of the proceedings.
   
   This may involve many things. For example, the mediator keeps no records of the mediation. When there is no record, it is difficult to breach confidentiality or to try to use the mediator to prove a particular point not finalized in the agreement. Some mediators require the parties to take all notes on provided paper and then destroy the notes after each session.
   
   Confidentiality also means that the mediator is not subject to subpoena and thus cannot be made a witness. Without notes or the facilitator, the only method to breach confidentiality is the testimony of an interested party who is usually bound by law not to disclose more than is agreed.
   
   
3. Good Faith from the Parties.
   
   Mediation is a voluntary process that is based on the assumption that the parties want to reach agreement. Good faith means entering into the process with the intent to work towards a resolution, and making reasonable efforts to do so. It also means not using the process for ulterior purposes, such as stalling for time or preparing litigation documents. The behavior and integrity of the neutral are also important in creating and preserving a good faith working atmosphere.
   
   
4. The presence of the parties.
   
   While this may seem elementary, this is where mediation differs from negotiation. Often in negotiation, the negotiators do not have final decision authority. In mediation, it is imperative that the people with full authority to act for the parties must attend. If the decision makers do not attend the parties cannot reach resolution in the mediation process.
   
   All parties necessary to the resolution of the issues should interact with the mediator. In a family dispute, if a party always checks with his parents before acting, the parents should attend. In a labor matter, if a company president always checks with the majority shareholder, the majority shareholder should attend.
   
   
5. An appropriate site.
   
   A neutral site is usually more conducive to the mediation process. It must mean a place where neutrality can be maintained, confidentiality preserved, and inclusiveness obtained. Often the choice of a meeting site is as important as selection of the attendees.
   
   

BENEFITS OF MEDIATION   Back to top

The benefits of using mediation include:

• Greater satisfaction with the outcome. Both parties leave with a sense of satisfaction because they have had the opportunity to express their views and participate in a mutual resolution.
• Disputes can usually be resolved in a short session at a minimal cost with privacy and confidentiality.
• Mediation also allows for creative rational resolutions to disputes not available in the traditional legal system, such as structured payment plans, performance of additional services, or an exchange of goods.
• It provides a greater possibility of preserving and existing business relationship.
• Perhaps most important, in mediation the parties keep control of their dispute by resolving it themselves, thus avoiding the uncertainty of a jury, judge or arbitrator's decision.

Useful Links:

Association for Conflict Resolution   http://mediators.org/
American Arbitration Association   http://www.adr.org/
Professional Mediators Association   http://www.promediation.com/

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