Choosing the Right Mediator for Your Disputes

Share:

The fields of law and mediation share a common interest in resolving disputes, but are none-the-less separate fields. Who you choose to mediate for you is determined by what your needs are.

An attorney has training and experience in negotiating and advocating for one party. Lawyers, of course, are well-versed in interpreting laws and analyzing complex factual circumstances.

Mediators are trained solely in alternative solutions that do not involve legal processes to facilitate dispute resolution and are skilled in acting as a completely neutral third-party, while simultaneously supporting parties involved in a dispute to communicate their needs with confidentiality when engaged in a mediative process. Mediation is a form of Alternative Dispute Resolution (ADR), which is the field of study to assist individuals in resolving and managing conflict without the need to retain legal counsel.

What is Mediation?

Mediation is a form of ADR in which a neutral third-party serves as a facilitator for parties involved in a dispute. This may be done in response to a court ruling, per the terms of a contractual obligation, or at the mutual request of all parties involved. Mediators facilitate communication towards an outcome accepted by both sides.

The mediator’s role in conflict resolution is not to make a final decision or adopt a position, though the mediator may offer suggestions or even provide new information that neither side has thought of yet. The crucial point is that both sides come to a conclusion that everyone is satisfied with. A mediator does not provide any legal advice.

Pros and Cons of using an Attorney for ADR

There is a common belief that Attorneys are mediators when this is not exactly accurate. Attorney-Mediators make up a small but growing percent of professionals taking on mediation issues. An Attorney-Mediator’s primary education is a law degree, with only rudimentary acquired education in conflict.

An Attorney’s primary responsibility is to aggressively bargain on behalf of his or her client. The goal is not resolution for both parties, but to win the dispute for whom they are representing. Lawyers actively craft agreements and aid in negotiations on their clients’ behalf throughout legal proceedings.

A 40-hour mediation certificate adds to an Attorney’s law degree for their ability to provide services as mediators without representing any of the parties involved in a mediation. 

Attorney-Mediators advocate on behalf of their clients to secure the most beneficial outcome possible by negotiating. These types of mediations help parties to negotiate, but do not address the human emotion brought to the mediation table by the parties.

Pros and Cons of using a Mediator for ADR

A mediator acts as an impartial intermediary to help parties in conflict reach a mutually acceptable compromise.

Mediators maintain their neutrality throughout the settlement process and assist the parties in working through the broad range of emotions that often accompany conflict.

Mediators often go through years of education in ADR, training and experience to expertly assist parties in zeroing in on the major topics hindering them from finding a resolution.

A Mediator’s primary responsibility is to improve communication and facilitate finding an agreement that benefits both parties.

An Attorney-Mediator charges attorney rates, while a certified Mediator’s rates can be a third of the cost of hiring an attorney.

A skilled Mediator will listen to all sides of an argument without taking sides, consider new information without passing judgment, and offer encouragement without influencing the discussion with their own biases.

Facts about ADR

Studies show disputes have very little to do with the law and everything to do with money, relationships, or unmet demands.

Parties in a dispute often seek to have their voices heard by the opposing side so that they may finally share their perspective on a topic that they have either never discussed with the other party before or have avoided doing so out of fear of offending them.

• Clients’ Needs Must Come First

Experts in alternative dispute resolution (ADR) put client needs first by acting as coaches, advocates, strategists, and are impartial. These are the areas where the disputing parties can most benefit from the assistance of a neutral third party trained in alternative dispute resolution. This is because they understand that listening, not litigating, is critical.

• Winning vs. Resolving

Lawyers are negotiators, and often lead their clients to court for the best opportunity to win negotiations with their opposition.

Qualified, experienced, impartial mediators have no vested interest in the outcome, but nevertheless manage to earn the confidence and respect of both sides because their objective is not to win, but to resolve the dispute.

• Budget

When deciding on a Mediator or Attorney-Mediator, cost and expense must be factored in. Keep in mind the possibility of additional legal fees if your focus is more on legal concerns. 

Final Thoughts

Mediators don’t fix disputes; rather, they present people with the tools they need to find their own answers. It is much more feasible that parties will abide by the agreement’s provisions if they are given the freedom to work out their differences on their own. A productive mediation session may pave the way for cooperative, non-confrontational dispute resolution. And it’s well worth it since it’s less expensive, quicker, and confidential. It preserves relationships and affords the client greater flexibility and control.