Venue: Mediation and Restorative Justice Center
Mediation is the process of negotiating with the assistance of a third party. The third party termed a “mediator” is the guide of the process directing the interested parties through the stage of beginning, middle, and end, and hopefully ending the process, and hopefully ending the process with a resolution of the conflict. In recent years, courtroom litigation has been on the decline and the use of mediation has become the preferred method to resolve cases.
Many courts throughout the United States mandate that civil court cases proceed to mediation before moving ahead to a full blown trial. In Waukesha County, were my mediation observation took place, Judge Mac Davis issued and Order dated July 31, 2012, that all Waukesha County contested Small Claims matters are ordered to proceed thru mediation. For all contested cases, after the Defendant files their written Answer with the court, the Plaintiff is required to initiate scheduling mediation within 10 business days of the filed Answer. The parties may use any mediator they wish. However, if they do not agree on a mediator, Mediation and Restorative Justice Center is to be used.
George Hall, the mediator in the case I observed, astutely noted the benefit of mediation to both the Plaintiff and Defendant as “would you prefer a group of strangers deciding your case or would you rather decide it for yourself?” This mantra presented by Mr. Hall is very persuasive. Given the opportunity, most individuals would rather decide their own fate, rather than have collection of individuals who they never meet, make the ultimate decision for them. Here, Mr. Hall’s goal was to reinforce that notion that is was beneficial for...
... middle of paper ...
... a contest of what side actually had the “stronger case” and when periods of the mediation would hit a roadblock, at which point he would step in as a “neutral” and ask “evenhanded, probing questions to the participants.” Upon getting the discussions back on track, he returned to being an observer. Mr. Hall also tried to improve the rapport of the parties when necessary. A perfect example is when the participants were mainly on the same page regarding the liquidation of jointly held assets except for a few sentimental items that represented a deep personal significance to each person. Mr. Hall showed great empathy to both sides on this issue and mutual respect formed between the disputing parties, which made it easier for Mr. Hall split up these articles and not let it unravel all of the other work that done as a collective to get to this point.
Sue contracts with Tom to deliver a quantity of computers to Sue’s Computer Store. They disagree over the amount, the delivery date, the price, and the quality. Sue files a suit against Tom in a state court. Their state requires that their dispute be submitted to mediation or nonbinding arbitration. If the dispute is not resolved, or if either party disagrees with the decision of the mediator or arbitrator, will a court hear the case? Explain. (See Alternative Dispute Resolution.)
2. Mediation allow parties to be involved, they want them to see how everything will go. Some cons about mediation is it can cost a lot of money it is very expensive. A lot of people think maybe one day it will be mandatory. The concerns are that using arbitration will keep companies confidential and in cases like this it will be bad for the company and its business.
Business owners and managers familiar with the court litigation system understand that high litigation costs and long delays make it difficult and expensive to resolve business disputes in court. They also understand that most civil cases that go to court are settled before trial. They are solved after spending considerable amount of time and money in the complex pre-trial phase, but just in time to avoid the risk of trial. Mediation and commercial arbitration provide superior solutions that help in resolving business disputes. Mediation puts the parties immediately in control of the situation and helps them get desirable outcomes without expending vast resources on litigation procedures (Berg, Permanent Court of Arbitration. International Bureau, International Council for Commercial Arbitration, 2005).
Mediation is typically ordered in types of cases that there is significant emotional ties; creating a potential for hostility, loss of relationships or personal feelings getting in the way of reaching an agreement. Arbitration is the best option for cases where the parties simply cannot come to an agreement and decide to have someone else decide the outcome of the case for them, without the expense and formality of a trial. Arbitration is also useful in highly complex cases where it is necessary to have a highly trained professional come to the
Maureen E. Fallen Remarks On Case-Management and criminal mediation 40 Idaho L. Rev. 580 (2003)
Mediation is one of the oldest forms of ADR. The mediator works with both sides in the dispute to facilitate a resolution. The mediator will talk to both sides separately as well as jointly in order to help both sides evaluate their options. Although the mediator can propose solutions to both parties, the mediator does not make a decision resolving the matter. There’s no requirement that states the mediator need to be a lawyer.
In this stage the parties begin the communication process, talking with one another as the mediator encourages expression (Mayer, Bernard, as cited in Folberg, Milne, & Salem, 2004, pg. 45). Here, the parties will give their opening statements, the mediator begins setting the agenda, and identify the interests and issues of the parties (Mayer, Bernard, as cited in Folberg, Milne, & Salem, 2004, pg. 45). A facilitative mediator will set a framework which allows each party to tell their individual stories and will act as a facilitator of communication. The task in this stage is to give the parties the opportunity to explain their issues and interests and for the mediator to carefully listen. This will continue throughout the mediation process. The action to complete this task is allowing the parties to meet with the mediator separately in the early stages and then moving towards group sessions once both feel prepared and comfortable enough. A facilitative mediator will also reframe and redefine the issues that are uncovered in order to get to the root or the underlying issues (Mayer, Bernard, as cited in Folberg, Milne, & Salem, 2004, pg. 45). The result of the communicating stage is all parties have the chance to share their stories, explain their interests and concerns, and feel encouraged to continue the
The mediation process starts by the agreement of two people whom are willing to bring in a neutral third party to settle a dispute between them. It can start almost anytime because it is the decision between the two parties. That being said it is obvious that mediation can start before a case is ever filed or as late as before a decision was ever made by the courts. To find a balanced agreement the mediator meets with both people disputing the case. He will meet with them together and privately. The mediator helps find a solution to resolve the case in only a few hours. Statistics have proven that 85% of commercial matters and 95% of personal injury matters end in written settlement agreements. Any type of civil dispute can be settled through a mediator if they choose to do so. When people use a mediator they directly get involved in the final decision and they have options that have never been thought of. Some more advantages is that it can be a fast process than going to court, it saves money, it sometimes keeps business relations, and creates ways for special needs.
Ott, Marvin C. "Mediation as a Method of Conflict Resolution: Two Cases." International Organization 26.04 (1972): 595-618. JSTOR. Web. 3 Dec. 2013.
Mediation is essential in the workplace because it affords an opportunity for employees in dispute to communicate their position as well as consider the perspective of the other party ("Mediation in the Workplace – A Proactive Approach to Preventing Litigation and Promoting a Healthier Work Environment," 2011). The mediation process helps improve employee engagement and reduce the number of issues referred to a higher authority. The Employment Practices website (http://www.epspros.com/news-resources/whitepapers/2013-prior/mediation-in-the-workplace.html) provides useful information about the importance of mediation in the
I found myself in a conflict last week and thought to myself, that it would be nice to have a third party help mediate a conversation I was about to have with my business partner. Since this wasn’t an option available to me, I had the conversation on my own. I do not believe that this talk was successful and if I had had a trained third party mediating our conflict I believe that the conversation and outcome would have been much different. Instead of me talking sternly to the individual and him not admitting to his faults, maybe we could have shared our frustrations and found a conflict free agreement on how to handle a certain si...
Mediation is a suitable solution for competing rights disputes because both participants have a recognized Human Rights Code right that needs to be accommodated. Mediation should be used when the parties can not reach an agreement through negotiation because mediation is effective for resolving complex human rights disputes. Mediation encourages parties to participate in creative and cooperative efforts to reach a beneficial solution. Litigation is less likely then mediation to result in harmonious solutions. Additionally, mediation repairs relationships and aims to make both parties understand each other’s perspectives through open discussion. Furthermore, mediation is effective in competing rights scenarios because settlements are legally enforced. Legal enforcement creates empowerment and trust because both parties are required to comply with the settlement
Poitras, J. (2007). The Paradox of Accepting One's Share of Responsibility in Mediation. Negotiation Journal, 23(3), 267-282. Retrieved January 23, 2012, from ABI/INFORM Global. (Document ID: 1313496891).
The ADR process that is used in a particular situation depends on the circumstances of that case. According to the Commercial Division of the Supreme Court, New York County, the principal forms of ADR are the following: 1) Mediation- A process in which a Neutral attempts to facilitate a settlement of a dispute by conferring informally with the parties, jointly and in separate “caucuses,” and focusing upon practical concerns and needs as well as the merit of each side’s position; 2) Neutral Evaluation- A process in which an expert Neutral receives a presentation about the merits from each side and attempts to evaluate the presentations and predict how a court would decide the matter; 3) Arbitration- A process in which the parties present evidence to a neutral or panel of Neutrals, who then issues a decision determining the merits of the case. An arbitration may be binding or advisory, depending upon the agreement of the parties. If binding, the decision of the arbitrator (s) ends the case, subject only to circumscribed review pursuant to Article 75 of the Civil Practice Law and Rules.
Mediation is a way to solve a dispute without having to resort to court procedure which sometimes could turned out to be rigid, formal and time consuming especially when it needed a lot of paperwork and the possibility of adjournment which could consume years. Besides that, unlike in court, mediator as a third impartial party did not acted as a judge who decides on the resolution however, the mediator will help the parties to explore the needs and issue which before preventing them from achieving a mutual resolution and settlement. The mediation process gave the authority towards the parties to agree with each other and open up the chance for the parties to meet with a resolution at the end of the mediation session.