A Profile of Mediation
You find yourself in a dispute with another. You are angry because you feel you’ve been injured, whether as the result of a dispute over an agreement or an injury to property or yourself resulting from the conduct of another. What to do? You look out across a lake at the horizon and the sun fleetingly illuminates the waters. You think you see a way out, but then the clouds shield the sun and darken your way forward. You find yourself struggling to chart your course. What to do?
You talk to your loved ones and discuss the possibility of litigation with an attorney–but still feel aggrieved with no clear path to a resolution. You want to own the dispute and resolve it yourself with the other party, but you don’t know how to do it. Your attorney counsels you regarding the anatomy of a lawsuit, but it feels so impersonal – putting the dispute in the hands of a third party (whether it be judge or jury) that doesn’t know you.
And then your attorney suggests another option – mediation. At first blush, because it is not an adjudication binding on both parties, you question the wisdom of proceeding in that fashion. But the more you think about it, the more you realize at least you will be engaged in solving the problem and not simply turning it over to a tribunal or judge. You come to realize that this is the way to own the problem and to be part of the solution. You realize you will have meaningful input into the process.
Your attorney tells you that with mediation the focus is first on engagement rather than on a resolution. “Wait,” you say. “Then why waste our time if mediation isn’t going to get us into the end zone?” But upon reflection you realize that without engagement of both parties you will never reach a resolution that has the potential to bring healing to the relationship with the other party.
So you agree to proceed with mediation. With your attorney you identify a mediator with the background and resources needed to facilitate the discussion between you and the other party.
Mediation brings with it its own emotional pain–not unlike that experienced in litigation; however, in mediation, unlike in litigation, you have some control over how those emotions play out. You also have time to process the emotions – alone with your attorney and together with the mediator and the other party.
The mediation starts with you and your attorney sitting across the table from the other party and her attorney. There are some opening remarks, after which the mediator cloisters both parties. In these private sessions with the mediator you have assurance of confidentiality, and you realize you’re not being rushed to a decision. You are involved in the process of finding a solution. You have a voice.
Additionally, in the process there is time to reflect on what the other party has said. The adversarial parry and riposte of litigation is absent. You come to appreciate that the other party also has feelings that are genuine. You have time to reflect on that, and time to process that with the mediator and your attorney in private.
At the end of the day a solution finds its way to the table. It is discussed and turned over and examined in the light of day – by you and the other party. The proposed solution is tweaked by both parties and comes back on the table for consideration. Finally, though there are aspects of it you find not to your liking, you’re able to put those aside, realizing you are now able to reach across the table, shake hands with the other party, and put this problem behind you.
Now you are able to move forward with your life, unencumbered by the painful uncertainty that arises from an unresolved, festering dispute.
This overview of the mediation process was prepared by litigation attorney Mel Hess. Mel and the rest of the attorneys at Gibbel Kraybill & Hess are committed to mediation as a viable alternative to litigation. Mel is a trained mediator with experience both as a mediator and as an attorney representing parties in mediation. GKH corporate attorney Jonna Stratton is also a trained mediator. Contact us to see if mediation is an option for you.