Legal Dispute Mediation
AN INTRODUCTION TO LEGAL
By: Mary E. Cates
and mediation - You have been
mediating all your
life. As a child you persuaded your parents. As an adult, you
persuade your spouse and children. As an employee, you have
persuaded your employer.
Mediation is a meeting with parties
who have a dispute and a trained mediator who acts as a neutral.
The mediator does not favor either side of the dispute but assists
the parties in reaching a mutual resolution. The mediator acts as
the voice of reason.
The goal of a mediation is reached when the parties believe that
the resolution was fair. The two main factors in a successful
mediation are the parties ability to cooperate and the skill of
Ability to Cooperate. Mediation is a creative solution to problems, your problems.
If you maintain an all or none approach, the mediation will
probably fail and the legal system will have to resolve your
conflict at a greater financial and emotional price.
Keep an open mind.
The best approach to mediation is to keep an open mind. You
donít have to automatically discount possible solutions at the
This only fuels the anger of the opposing side Ėthe
side that you need to cooperate. You should ask questions and
explore the realistic possibilities of the offer. Sometimes by
asking the right questions, you can reveal the weakness of the
offer without having to directly discount the offer. Sometimes you
can steer the offer into a more beneficial one.
Length of dispute. On
matters that are fresh, parties tend to maintain a defensive
position stronger and longer. On matters that have existed
for awhile, most favor a resolution and are flexible to
Multiple sessions. You may have more than one mediation.
This is preferable if there are a lot of issues. A three
hour session is a long time. The parties become emotionally
drained and unless things are running smoothly and you are making
progress, you should stop after three hours. You can then evaluate
whether another session would be beneficial.
Skill of Mediator. The most
important element in a successful resolution is your choice of
mediator. While it is certainly preferable to have a
mediator with knowledge of your particular dispute
(landlord/tenant; property issues; divorce/separation); the
mediatorís ability to interact with different personalities is
even more crucial.
The mediator needs strong people skills.
The mediator needs to have basic psychological savvy that only
comes from experience. They should be creative and suggest
options, lots of options. They need to be clear, organized
and keep the mediation moving. Their skills should match the
sophistication of the participants.
Selection of a mediator. Your
life experiences should help you in selecting a mediator. If
you generally like someone and are impressed with them, so will
your opponent. If you dislike someone, you are not going to trust
their judgment. Hire only experienced mediators. You then have the
benefit of many years of conflict resolution to help you.
Can I always select the mediator?
If you arrange for a private mediator, you can. If you are
using a mediator through a court system or through a company or
government, you might be assigned a mediator. You can ask if
an outside mediator is allowed.
How can I find out if my dispute
can be handled through mediation?
If a lawsuit is filed,
call the court where the matter is pending and ask if it can be
referred to a mediator. If the court has a dispute resolution
program, it will be transferred there. If you have an attorney,
tell your attorney you wish to have the matter submitted to mediation.
If you have a dispute with a company or corporation, ask if they
utilize or would utilize a mediation service. Most governmental
agencies utilize mediation as well.
If a lawsuit is filed and the
matter is resolved through mediation, what happens to the lawsuit?
The parties enter into a written resolution and it is
submitted to the judge as a consent agreement.
How do I prepare for mediation?
Always have a goal in mind of what you want and what you will
settle for and back into it. Always keep your goal in mind
so that you can direct the resolution.
Can I take an attorney to the
Yes. Obviously, if you already have an attorney involved
in the dispute, you should take them, or you should retain an
attorney who is also a mediator. They will investigate and
argue both sides. Their legal experience and training sharpens
their ability to persuade. You should consider the
importance of the matter. If itís important, you should take
your own attorney.
What if I donít want to say
negative things about my opponent in front of them?
Ask the mediator to caucus. In a
caucus, you speak in private with the mediator, outside the
presence of the opposing side. You can speak in confidence. The
mediator will not share your comments if you request a matter be
Should I hire a mediator who is
an attorney? Yes, but consider the mediator.
Are their people skills strong? Attorneys are problem
solvers. They are paid to resolve disputes. Their experience
teaches them to look for an answer, deal with the controversy and
seek results. This is the purpose of mediation.
Unexpected benefit of mediation. You find out the
oppositionís version of what happened. You find out what
information (later known as evidence) they have that supports
their position. This helps should the matter not be resolved and
it goes to Court. You know more about what you have to
As an attorney, what do you see
as the benefit of mediation?
You control the outcome. Most of the cases I handle alter
individualís lives. Any time you give this control to a
judge, you run a 50/50 risk it might not go your way. You need to
honestly evaluate the effects of a bad result. This
possibility is the reason for mediation.
Mary E. Cates is a licensed Georgia
Mediator and Georgia Trial Attorney. All comments are directed
towards her experiences as an attorney and mediator with Georgia
Law. Her practice is limited to domestic law in Metro Atlanta. She
has 17 years of experience. She has handled hundreds of domestic
law cases. She has utilized mediation in 100% of her
contested cases. She also practices collaborative law in a further
effort to assist her clients in resolving their disputes in a more
effective and efficient manner.
Mary E. Cates
120 North Avondale Road, Suite A-2
Avondale Estates, Georgia 30002
Copyright © 2002 Mary E. Cates -
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