Why choose mediation?
Parties share the cost of one mediator, instead of each paying a lawyer to negotiate or go to court for him or her. Even when lawyers attend the mediation, the costs are kept down because the process is settlement-focused and time-limited. Mediation does not involve letter-writing or preparation of court documents. Necessary experts, valuators or outside opinions can be obtained jointly, instead of each person paying for their own. And there are no motions, no affidavits, no case conferences, no examinations, and no trial. Perhaps most importantly, mediation takes place in a collaborative environment, not an environment of fear or defensiveness. The focus in mediation is on problem-solving, not blaming. Many unnecessary costs can be avoided as a result.
Parties in mediation have control over the process. They can schedule meetings when it is convenient, and control the pace of the process. They can choose when to involve their lawyers and when to meet without lawyers. Parties in mediation have complete control over the outcome; there is no judge making decisions for them. Although mediations must take place in the ‘shadow of the law’, parties are free to make their own choices about settlement based on what they believe is fair or right for them. Because they have more control, people in mediation often find solutions that may not have been considered in more adversarial processes.
People who need a mediator are going through a stressful time. Separation and divorce, job loss, estate or family disputes, lawsuits and neighbour disagreements cause a great deal of anxiety and disruption.
Even though the conflict can be intense, mediation focuses on finding acceptable solutions, rather than focusing on blame, anger, accusations, fear and guilt. The emphasis is always on working together to solve the problems, rather than finding ways to be proven “right” or “wrong”. This usually reduces stress, anger, fear, anxiety and conflict.
When lawyers attend mediation, they work together to help find solutions to problems rather than build their cases against the other party. Clients in family law cases often find the “other lawyer” to be a main source of stress. But when clients and lawyers meet each other in mediation, it is much harder to demonize one other. Invariably, the mediation process helps lawyers do what they do best: advocate effectively for their clients’ best interests.
Almost all studies comparing family mediation to adversarial lawyer-negotiations and litigation show that people who choose mediation are more satisfied with the process and the result. Research also shows that mediated agreements are more likely to be respected by both parties than decisions imposed by judges.
People can spend months negotiating through lawyers’ letters. The court structure and system can drag on for years. The longer a case takes, the harder it can be to reach a settlement. People get hurt and angry and insulted by the legal process, which makes them less willing to want to settle. And the more people spend on legal fees, the more they demand at the settlement table, in an effort to re-coup some of their losses. Early focused mediation can help dissipate the destructive emotions that can get in the way of reasonable settlements. And it can help get a productive dialogue going, which can lead to a much earlier settlement.
Better for the children.
Parents who are trying to work out post-separation parenting agreements often feel that mediation is a better process for their children. Research shows that high conflict between separating parents hurts many children more than the separation itself. Parents in mediation often share the goal of reducing conflict so that they can focus on the needs of their children. Early mediation is a proven way of reducing stress and conflict for the benefit of the children, especially during the critical first year after separation.
As well, mediation gives children a unique opportunity to be “heard”. Kids are affected by separation in every aspect of their lives. Their interests, wishes, preferences and goals are worthy of respect and attention. Sometimes it is hard for separating parents to fully appreciate what their children’s needs or wishes might be. It is often hard for children to convey their feelings.
But all the latest research shows that children very much want to have a voice at the table. They want to know that they have been listened to and heard. Mediators are uniquely qualified and situated to give children that voice. There are many ways to do it, including having the children meet with the mediator or having a social worker meet them and report back to the mediation.
Better for business, and for anyone with a continuing relationship.
People with neighbour disagreements, sports disputes, school-related issues, family disagreements or business disputes often want or need ton continue their relationships with each other. Because mediation does not seek to blame either side, it is often much easier to continue or even improve difficult relationships through mediation, something very difficult to achieve following an adversarial process.
Mediation seeks to empower those in conflict to resolve their own disputes. Mediation gives each party equal opportunity to speak, to be understood, and to propose solutions. It moves at a pace with which the parties are comfortable. It seeks to provide a safe place for these difficult but necessary conversations. Neither party can gain an advantage by threats of court proceedings, stressful and costly motions, legal intimidation or delaying tactics. Because when mediation is voluntary, bad faith is less likely and can be quickly detected. Parties feeling vulnerable can discuss privately with the mediator what they need in order to feel more empowered.
All issues can be addressed at mediation; the parties define the issues and set the agenda. Unlike the court, which only deals with the legal issues, mediators can help the parties work through all issues that they need to resolve in order to move away from the dispute and get on with their lives.