Disputes happen. They come in many different shapes and sizes – from problems between neighbors to family issues, business disagreements, employment situations and public policy matters.
During the course of litigation, many people are ordered by a court to participate in mediation. However, the outcome of mediation is voluntary, meaning that the result of the discussion is in the control of the parties.
If you are involved in a conflict of any kind, you probably have a difficult time thinking about sitting down with the other party and having a rational and objective discussion about the issue. The role of a mediator is to help in this situation. Mediators are trained neutral facilitators who can guide a negotiation discussion in a way that respects each party’s perspective and helps the parties work toward a solution to the problem.
In mediation, the facilitator provides a private and confidential environment, helps clarify any misunderstandings, identifies the interests of the parties and frames the issues and possible options in a constructive way. The mediator can help to loosen communication deadlocks and promote cooperation and joint problem solving.
Lawsuits, the traditional method of conflict resolution, can be expensive, time-consuming and exasperating. There are many problems that need to be solved or addressed, but in many cases, the parties cannot afford the expense of litigation. Mediation can be scheduled at the parties’ convenience, and it is less stressful and more cost-effective than litigation.
Choosing the right mediator is an important part of the process. Fortunately, there are a lot of qualified people who offer mediation services. There are private and court-appointed mediators, and ones who are attorneys, retired judges or non-attorneys. Mediators typically have areas of specialization based on their training, background and expertise, such as family, civil, employment, neighborhood or complex multiparty negotiations. If you are considering mediation, it is good practice to talk with several mediators to be sure to find one with the right background and experience for your dispute.
In Colorado there are no requirements for being a mediator, but most people who offer mediation have specialized training and adhere to ethical standards and codes of conduct of various conflict resolution organizations. Ongoing educational and training opportunities are readily available, and many dispute-resolution organizations require their members to engage in continuing education on a regular basis.
It is up to the parties to decide whether to have their attorneys involved in the mediation process. When attorneys attend a mediation session, they generally allow the parties to discuss the issues and they are available for consultation. Some attorneys do not attend the mediation session but are available by phone for their client’s benefit.
If the parties reach an agreement, it is written and each party signs the agreement. Sometimes, with the consent of the parties, the agreement becomes part of the dismissal of a lawsuit or other proceeding. If the mediation session is not productive, the parties can walk away without an agreement, reschedule to try again at a later date or pursue litigation or other means of addressing the issues.
Mediation is particularly effective when the parties have, or need to have, an ongoing relationship. Some examples include: business partners; landlords and tenants; employers and employees; husbands and wives; family members; and neighbors. In situations where relationships are important, mediation can open up channels of communication and support collective problem solving. These elements are generally difficult to accomplish in litigation settings.
In a conflict situation, real change can be achieved when the people most affected by the problem actively participate in discussing the issues, developing options, reaching agreement and implementing the solution. The bottom line, though, is that the parties are sincere about wanting to address the problem and trying to reach a mutual agreement. The parties need to be willing to focus on the future instead of dwelling on the past, and understand that the responsibility for solving the problem is with the parties. If these elements are on the table at the mediation, the likelihood of a successful outcome is very high. Anyone involved in a dispute should consider whether mediation is appropriate, and if so, find a qualified mediator and pursue the resolution of the problem in good faith. Then get back to enjoying better things in life!
Erin Johnson lives in Rico and serves clients throughout Southwest Colorado. She is a licensed real estate broker and practices law in areas including real estate, land development, community associations, business, estate planning and offers private non-domestic mediation services. Reach her at erin@fone.
