Adversarial Mediation

Disputes can be resolved in a variety of ways -- you can give in  to your adversary, or use physical force to get your way; i.e., beat them up (or hire someone to do it for you) [as we all know from experience, this approach can lead to catastrophic consequences for all involved, including you]; or you can litigate, i.e., "sue them," and HOPE that a judge (a stranger) or jury (several strangers) side with you and not with your adversary.

Litigation is a "civilized" approach to dispute resolution, striving for (but not always achieving it) "justice" by allowing attorneys to represent their clients in court, bound by laws, precedent, and rules of evidence and procedure.  A good lawyer does not guaranty victory, and a bad lawyer may very well be the cause of you future misery; just like a "crazy" judge or jury may render an unexpected result.

Litigation is usually very time consuming and inefficient.  In an effort to speed up the process and avoid other pitfalls, litigants sometimes resort to arbitration.  In arbitration, the litigants pick one or more arbitrators, who will then act as the deciders of the dispute.  In arbitration, hoped for efficiency is often offset by a lack of the right to an appeal; i.e., if you believe that the arbitrator(s) did not do you justice, you do NOT have the right to appeal, and you are stuck with the arbitrator(s)' decision.

Mediation is the process by which YOU retain full control over how the dispute is resolved; however, it requires that both sides to the dispute be willing to mediate.  To facilitate the process of mediation, a mediator helps the parties to communicate and focus on the issues important to the disputants.  The mediator does NOT decide the outcome of the dispute -- the mediator will help both of you jointly to discuss the problem at hand, and to find a solution to the problem that meets your individual needs.

Mediation is NOT bound by rules of evidence or procedure; is NOT bound by precedent; and is generally NOT bound by laws (although, it cannot be used to achieve an unlawful purpose or result).  Through mediation, YOU decide what issues are to be addressed, and how they will be resolved.  YOU decide what is fair, or at least what you can live with; and YOU decide how you will live after the end of the dispute.

Mediation is a very flexible process -- traditionally, you will meet with the mediator in one or more sessions (the number of sessions is dependent on the complexity of the problem and the details of the solution); it will not be unusual for you to have "homework" to do after each mediations session [be that just to think about what was said during the session; to gather relevant documents; or to investigate facts necessary to the dispute resolution process].

Because the mediator does NOT represent either of the parties, the mediator is generally thought of as a "neutral" party to the mediation process.  It is not unusual for the mediator to communicate with one or both parties individually; and often appropriate "experts" are brought into the mediation process to help the parties understand relevant information.

The parties in mediation often are represented by, and are even encouraged to retain attorneys --- attorneys help their clients understand the law as it applies to the facts, and to understand what is LIKELY to happen if a mediated solution is not found.

Often, the LIKELY outcome of litigation is far worse than the solution that can be achieved through mediation; AND, mediation avoids the POSSIBILITY that the LIKELY outcome turns out to be a "CRAZY" outcome.

Copyright © 2005  Paul G. Kostro, A Professional Corporation                                                                                                                                                                                        [Home]