About Mediation

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Taking A
Closer Look At
Civil Court

We’ve all heard, “I’m gonna sue you!”

“The courts of this country should not be the places where resolution of disputes begins. They should be the places where the disputes end after alternative methods of resolving disputes have been considered and tried.”
US Supreme Court Justice Sandra Day O’Connor

Everyone in a courtroom is getting paid except you and the other party.

Here are some approaches to manage deals/disputes/conflicts:

  • AVOIDANCE
  • NEGOTIATE
  • MEDIATE
  • ARBITRATE
  • LITIGATE
  • POWER

Civil Court records are not private. Court records are available to the public.

Some choose an approach based on emotion instead of desired outcome.

Let’s talk about your situation.
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What are the characteristics of a successful Mediation? It depends on how you view Mediation. Mediator/Trainer Katherine Graham says an average 85% of Mediations reach sustainable resolutions. She highlighted that successful Mediations share these traits:

  • 1) The context for mediation is right.
  • 2) The parties engaged with the process.
  • 3) The parties left feeling good.
  • 4) An outcome has been produced.
  • 5) The effect is long lasting.
https://www.mediate.com/articles/GrahamKbl20140905.cfm

What about the remaining 15%? DTM Legal highlights that Mediation enables both parties to understand the case, evaluate strengths & perhaps even agree on dispute aspects. For non-settlements, Mediators may ask permission to remain available to parties as sometimes settlements come after a reflective period. Parties can pursue negotiation, arbitration or litigation in the knowledge that things said or done or any documents created in mediation are ‘without prejudice’ and except in very limited circumstances, cannot be relied upon in subsequent litigation or arbitration.

https://www.dtmlegal.com/news/what-happens-when-mediation-fails/

DEAL MAKING & DISPUTE RESOLUTION APPROACHES

Deal making has unique tensions.

Which approach fits your needs?

Conflicts and Disputes can be emotional.

Which approach gets the best outcome for you?

POSSIBLE APPROACHES TO CONSIDER

Consider approaches below that leave options allowing transitions to other processes without too much pain and loss of control.

INTEREST-BASED
BREAK CONTACT

INTEREST-BASED
LOOKS BACKWARD/FORWARD

INTEREST-BASED
LOOKS FORWARD

Avoidance

  • RECONSIDER
  • BREAK
  • CONTACT
  • WITHDRAW

Negotiate

  • PRIVATE
  • RESULTS MIGHT COME INTO COURT
  • CREATIVE SOLUTIONS
  • YOU DECIDE YOUR FATE
  • CAN IMPROVE RELATIONSHIPS

Mediate

  • 3RD PARTY NEUTRAL
  • COLLABORATIVE
  • CREATIVE
  • CONFIDENTIAL IN MANY STATES
  • PROBLEM SOLVING
  • CAN MEND RELATIONSHIPS
  • YOU DECIDE YOUR FATE
  • REDUCE POWER IMBALANCES

Arbitrate

  • 3RD PARTY DECIDER
  • PROVE YOUR CASE
  • YOU DO NOT DECIDE YOUR FATE
  • RIGHTS-ORIENTED

Litigate

  • THIS IS COURT
  • JUDGE or JURY
  • ADVERSARIAL
  • SHOW EVIDENCE
  • COSTLY
  • LOST WORK
  • HIGH STRESS
  • MORE TIME
  • YOU DON’T DECIDE
  • RESULTS ARE PUBLIC

Power

  • FIGHT
  • COERCE
  • FORCE

*Summarized from George Siedel, Williamson Family Professor of Business Administration & Thurnau Professor of Business Law course; “Successful Negotiations Course “

Check out this course: https://www.coursera.org/learn/negotiation-skills

“When you employ a dispute resolution approach, ask yourself if it is likely to bring you the satisfaction you are seeking.”  -Adeyemi-Akisanya, CEDR-accredit Mediator and SCMA Mediation Advocate & Certified Mediation Advocacy Trainer

 

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