A Thumbnail of Mediation

An Alternative Form of Dispute Resolution
Cathleen M. Vitale , Esquire
Certified Mediator of Conflict Resolutions
Telephone: 410.768.9300
E-mail: cmvitale@henault-sysko.com

Introduction

With the cost of litigation skyrocketing, Courts, attorneys and litigants are seeking alternatives to time consuming, expensive and often unsatisfying trial. Mediation is one of the many methods of alternative dispute resolution which has come to the forefront as an alternative to the litigation process. Mediation is a cost effective means of reaching a "win/win" outcome to resolve conflicts. The process is now widely used in the District and Circuit Courts of Maryland to handle all types of disputes, including, small claims, landlord-tenant, domestic violence, non-violent criminal matters, divorce and separation issues including child custody, visitation and support, distribution of marital property and division of debts as well as most civil disputes involving services and/or debt collection. This Thumbnail is intended to serve as a brief introduction to the mediation process, what types of disputes are ripe for mediation and what to look for when selecting a mediator to handle your dispute.

Mediation versus Litigation

In litigation, the parties, the Courts and the law use "position based" bargaining to determine the outcome of conflicts. Judges are required to apply laws and statues in rendering decisions. Often, the Judge has only a partial picture of the circumstances. He or she must decide within the confines of the law, what is best for the litigants. What the litigants believe or know to be in their best interests can be of little or no importance. They are required by law to listen to the facts presented by each side of the dispute, and to "award" to the side that presents the most persuasive presentation "the prize". The prize takes on many forms. It can be a monetary judgment. In a criminal case, it can be the guilty or not guilty verdict, the sentence or restitution award. In domestic cases, often the prize is the children in a custody battle, or the pension, the home or the car in a property dispute. No matter what the outcome, litigation is geared to a "win-lose" result. One person wins, one person loses.

Mediation is different than litigation. Mediation is a process whereby the parties are assisted by a third party, the mediator, to resolving the dispute between them. Unlike litigation, mediation looks towards the future in solving the problem using a "needs based" bargaining system. What the parties need versus what the parties want is the backbone for the parties reaching resolution, There are few hard and fast rules to that process, as the parties "own" both the process and the solution.

The Role of the Mediator

The mediator is a neutral third party whose job and responsibility it is to facilitate and control the communication between the parties but does not make decisions regarding how to resolve or settle the dispute. A mediator may use various styles and techniques to draw from the parties the information that they need to assist them in reaching resolution. The mediator can act as the balance between a strong and a weak personality. He or she may act as a devil's advocate to encourage the parties to explore unconventional possibilities and solutions. Although not required, the mediator whom you select should have some working knowledge of the topics and issues to be handled in the mediation sessions. For example, a mediator handling a divorce or child access matter should have a knowledge of family law, property division and child access issues. A dispute over a construction contract might be better mediated through someone with construction or building in their experience files.

The Mediation Process

Most mediation sessions average four to ten hours in length. Typically the sessions are divided into two or three hour sessions. The mediator will explain to the participants the "rules of mediation". These often include the order of topics to be discussed, "house rules" - no shouting, no demeaning language or attitudes towards the other participants, use of breaks, etc. Each participant is advised that they have a say in the process, and more importantly the outcome.

The mediator then explores with the participants the nature of the matters to be mediated. This is done through a series of open ended questions and ideas. It is not the role of the mediator to rule out options or suggestions. Quite often the initial meeting will involve several brainstorming sessions to address possible solutions. In mediation there is no right or wrong answer, only possible solution.

After each possible solution is identified, the participants and the mediator begin to define which of the options might form an acceptable resolution for the parties. As the participants discuss each option, the process continues until a final resolution.

Most mediators employ advisory attorneys. The job of the advisory attorney is to take the agreement reached by the participants and to reduce them to writing. By using an advisory attorney, the mediator can continue in his role as a neutral third party member of the process and can continue to assist the parties should additional issues arise.

 

ABOVE ALL, MEDIATION WILL ALLOW YOU TO MAKE THE DECISIONS. AFTER ALL, DON'T YOU KNOW BETTER HOW TO SOLVE YOUR PROBLEMS THAN A STRANGER???

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