When it comes to resolving a conflict, you have options. If you are considering filing a lawsuit or going to arbitration, you may want to first consider some specific benefits of mediation.
Often arbitration and mediation are lumped together, because people assume that they are essentially the same experience. In fact, mediation is a unique form of dispute resolution, and although it has a few elements in common with arbitration, it is distinctly different. Mediation is a voluntary, confidential process, where participants retain self-determination, are free to explore creative and flexible solutions, that is generally substantially less expensive and time consuming than going through the court or arbitration process.
- Self Determination
- Creative Solutions
- Lower Investment
What can we do to resolve this conflict today? This is usually the driving force of thought for a mediator. The National Conflict Resolution Center explains that “mediation may be therapeutic, but it is not therapy; it is perfectly legal, but it is not the practice of law.” In mediation, the role of the mediator is as a neutral third party who is trained in a communication process that seeks an agreement that is mutually acceptable to the parties in conflict. The primary focus for a mediator is helping parties discover a way past the conflict. It is future focused.
Mediators are not decision makers. When I mediate, I sometimes find myself reminding clients that they do not need to convince me. Unlike a judge, jury, or arbitrator, it is not the role of a mediator to decide who is right and who is wrong, to determine fault, or figure what is equitable in the situation. It is a mediator’s role to guide the process, allowing the parties to come to a solution that they voluntarily agree to.
So how does it work then? If a third party doesn’t have the power to make a ruling, or issue a decision in the matter, how is the conflict actually resolved? Self-determination. During the process each party has the opportunity to hear information that they may have been aware of before, and to share information that they believe the other party should know. Creative solutions and options for resolution can be presented and discussed. Additionally, each party faces the question of what is likely (or even possible) to happen if an agreement is not made in mediation, and decide for themselves if that is a risk they want to face.
It is incredibly empowering to retain the personal power to make decisions for yourself, rather than giving that control up to other people. This ensures that agreements are made based upon what it is important to the parties. Social psychology studies have shown that people are more likely to follow through with agreements that they enter into voluntarily than they are to comply with mandates issued to them.
In many situations, it is undesirable to resolve a conflict in a way that will leave a permanent record. The confidentiality provided by mediation prevents the details of a conflict, and the agreements reached, from becoming public. In the state of California, mediation is by law a confidential process. This means that what happens in mediation is not admissible or enforceable in a court of law, unless the parties request that an agreement be made admissible and enforceable. Mediators do not keep files or records with identifying information that can be later used in a court. There are no transcripts of testimony or evidence that will be filed away, and could later become public. For many people, this privacy protection is highly valuable.
In court and arbitration proceedings, the decision makers are often limited in the solutions or remedies that they can consider. They have set guidelines they have to follow, even when they know that those remedies may not actually be practical or viable. In the end, though they are following the law in their rulings, they often cannot provide a real remedy.
In mediation, the parties can be creative with the solutions that they propose and consider. The communication process can reveal potential options that otherwise might not surface, but that meet the needs of both parties. By being flexible in what they consider, parties are often able to come up with a solution that is both realistic and likely to be followed through on.
Conflicts probably cost you enough already. Why spend more to resolve them? Conflicts can come with a high price tag. Sometimes that is measured in dollars; sometimes it is measured in time spent. It can also be costly in terms of distraction, disruption, stress, and damaged relationships. When conflicts involve the court system, there can be court fees, fees for experts, or servers, as well as attorney fees, so the longer the conflict drags on the more expensive it gets. Arbitration, though usually less expensive than going to court, requires following procedural rules that can add time and expense to a hearing. Mediation, which is usually conducted in one or two sessions, is generally significantly less expensive, in both terms of time and money, than court or arbitration processes. So when time and money matter, and getting past the conflict quickly is valuable, mediation is worth considering.
Esther DeWitt, M.S., CAMS-I, is an industrial-organizational psychology practitioner specializing in conflict, anger management and leadership issues. She is a credentialed mediator and certified anger management specialist.
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