Saturday, October 17, 2009

Mediation: What is it & what Is It good for?

I spent 40 hours last week in a training program, the Essentials of Mediation & Divoce Mediation in Novato, CA and came away with some amazing tools to branch out into the field of Mediation. Now this is not to be confused with Meditation at all, but I realize that meditation prior to a mediation is probably not such a bad idea.

As a Mediator, it is imperative to maintain neutrality throughout the process in order to effectively facilitate a collaborative dispute resolution (i.o. help people come up with a solution to conflict).

Mediation has been defined as "a cooperative dispute resolution process in which an impartial third person facilitates communication between the parties to help them reach a mutually accceptable resolution that is better than their alternatives"

Mediation is an alternative form of dispute resolution. It is alternative to:
  • Litigation
  • Arbritration
  • Direct negotional between two parties alone
  • Settlement conferences with attorneys
  • Special Masters
  • Private Adjudication
  • Self-help
  • Doing nothing.
Mediation is not theraphy or relationship coaching but here's what it provides:

Mediation is:
  • Voluntary
  • Informal
  • Private
  • Confidential
  • Decision making is done by the parties (not the mediator)
  • Focus is on the parties needs and interests (not necessarily the law)
  • Emphasized mutual problem solving
  • Tends to be more efficient and less costly than litigation
  • Parties work towards a mutual gain rather than a win/lose (as in litigation)

When is Mediaton appropriate:

  • When there are multiple issues
  • When the parties want to control the outcome (not a court or arbitrator)
  • When the conflict involves communication problems
  • When the parties have or had a relationship
  • When the parties want to save time, money and stress (avoid litigation)
  • When resolution is possible without necessarily assigning "fault" or "liability"
  • When personal/emotional issues exist
  • When the parties perceive the facts differently
  • When there are creativve possibilities for resolution

When may Mediation not be appropriate:

  • When one or more parties want a definite ruling on the issues in a conflict - vindication.
  • When one or more parties will only be satisfied if the other parties suffer - revenge.
  • When the parties have "nothing to lose" by going forward to litigation or some other process - or "little to gain" by going to mediation.
  • When one or more parties is not participating in the process in good faith
  • When distrust is so hight that the parties have no faith in the viability of a potential agreement.
  • When a significant power imbalance exists and connot be addressed constructively
  • When a party is unable to effectively participate in the process due to physical, mental or emotional incapacity.

Here are just a few types of matters that mediation can help resolve conflicts:

  • Divorce (property, custody, visitation, support, etc.)
  • Probate
  • Trust administration conflicts
  • Employment
  • Discrimination
  • Community issues (neighbor disputes, etc.)
  • Business transactions
  • Business/Partnership dissolutions
  • Real Estate transactions
  • Administrative agency conflicts

To find out more visit or call the Law Office of Amy L. Alvis at 925-478-6435

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