Mediation is a process for resolving or mitigating existing or potential disputes. It is not necessarily a single activity; it may be a group of activities that can differ substantially from one case or problem to another. Mediation involves the intervention of someone “outside” the dispute who helps to produce a settlement, but only when the parties agree on all its terms. Like conciliation, mediation brings disputants together and attempts to reduce conflict but, unlike conciliation, mediation remains a vital force all the way through to settlement. There is no one “right” way to mediate. Different disputes and different parties demand different strategies and tactics from mediators. Mediators themselves differ in background, personality, and skills. This article will briefly review the mediation process and highlight its particular advantages in the real estate context.
WHY SHOULD PARTIES MEDIATE?
There are several characteristics of mediation that make it an especially good choice for a wide variety of cases:
- The parties “own” the solution to their dispute and can tailor it to the peculiarities of their lease, transaction, etc.;
- Procedures are informal; litigators may not be needed;
- There may be a greater opportunity to be heard to “speak one’s piece” than when appearing before a judge. Each party will feel, at some level, that he or she has had his or her day in court;
- No outside force pronounces one side a winner and the other a “loser”;
- Satisfaction with the process has been shown to be high;
- Creative options for settlement are encouraged and given a more thorough exploration than is often possible in court;
- Better relations are preserved between the parties. This is especially important if there will be ongoing or potential contact between them.
The Practical Lawyer
CLICK HERE for the free download of the full article, which was originally published in ALI CLE’s The Practical Lawyer.