Serving Clients Throughout North Central Missouri
For over 16 years, Michael J. O’Loughlin has been helping people resolve disputes without going to Court. One method he uses to accomplish this goal is a dispute resolution process called Mediation.
When two people or organizations have a dispute, instead of asking a Court or Arbitrator to resolve the dispute, they can turn to a process called Mediation for help in resolving the dispute. The person in charge of the mediation is called the Mediator. Mediators are completely neutral and have no interest in the case except to help facilitate an agreement between the parties that both parties are satisfied with.
The Mediator creates a setting and process that enables conflicting parties to:
- discuss their dispute;
- address any misunderstandings they may have;
- generate possible solutions; and
- voluntarily agree to a solution they both can live with. This agreement is then put into writing and signed by both parties. Once it’s signed it becomes a legally binding contract.
Groups and individuals that commonly use mediation to resolve their disputes include, but are not limited to:
- Corporations or businesses
- Community, church or government organizations
Conflicts that are often resolved using mediation include:
- Will and Trust contests, including Estate distribution conflicts;
- Domestic disputes, including divorce and child custody cases;
- Employer/Employee disagreements;
- Lawsuits (individual or multiple party); and
- Community disagreements.
Just like most things in life, there are Advantages and Disadvantages to using Mediation to resolve a dispute.
The Advantages of Using Mediation
While every dispute should be evaluated individually to determine which resolution method is most appropriate for resolving it, the Mediation process generally offers the following advantages:
1. Each Party Remains in Control of the Outcome. The disputing participants are not required to agree to an outcome they don’t feel good about. This is in contrast with a Court of Law which resolves disputes by forcing an outcome on the participants. In Mediation, a settlement agreement only occurs if both parties feel the agreement is in their best interest.
2. Mediation is Voluntary. The mediation process creates a safe, organized opportunity for each person to discuss their differences and attempt to find a resolution each person can accept. Participation is completely voluntary. However, two exceptions to this occur when a Judge in a Court of Law requires the parties to Mediate, and when Mediation is required by a contract the parties have already signed.
3. Mediation is Confidential. While Court proceedings and Court files are open for the public to see, Mediation proceedings can be confidential and closed to the public. Both parties can agree to keep the entire mediation process confidential, meaning none of the information disclosed during the mediation process may be shared with the public or other outside parties.
4. Mediation Encourages Healthy Communication. As mediation proceedings create a safe environment for the parties to discuss their dispute, each party has the opportunity to air its grievances and to correct misconceptions. When successful, lines of communication are created between the parties that allow them to have improved long- term relationships.
5. Mediation Usually Saves Time and Money. As a result of the adversarial, evidentiary method used in the traditional Court process, going to Court to resolve your dispute can be very expensive. The Mediation process typically eliminates the need to go to Court. Parties may or may not choose to be represented by attorneys in Mediation. If attorneys are used, the time attorneys are required to spend preparing for Mediation is generally far less than the time expended by attorneys preparing for litigation in Court. As a result, using the Mediation process instead of litigation in Court to resolve your dispute often saves you time, attorney fees, and other expenses.
6. Mediation Results in Effective Solutions. Studies show that over 90 percent of participants in Mediation indicate they are satisfied with the outcome of their dispute and would use Mediation again. This is not surprising, as parties in Mediation have complete control over the outcome of their case.
The Disadvantages of Using Mediation
While Mediation offers parties with disputes many advantages over other dispute resolution procedures, it is important to recognize there can also be disadvantages to using Mediation. Here are some examples:
1. Sometimes No Agreement is Reached. There is no guarantee that conflicting parties in Mediation will agree to a resolution of their conflict. Ironically, one strength of the Mediation Process (the fact that it’s voluntary) can also be a weakness. Sometimes the disputing parties will go through the time, expense and effort of Mediation, only to find they are unable to agree to a resolution of their dispute. They are then faced with looking to other methods for resolving their dispute, such as going to Court.
2. Mediation Agreements are only enforceable if taken to Court. After a Mediation Agreement between the parties is signed, the Agreement is treated by law the same as all Contracts people sign. That is, if one party does not follow the agreement, the other party can only enforce the agreement by filing a lawsuit with the Court.
3. One Party may not cooperate. One party to a dispute can simply decide they do not want to cooperate in the Mediation. A party can make this decision any time, even after the parties have already started the Mediation.
4. Advantageous Information can be given. Mediation can be used by the parties to gain sensitive information from the other party. This information can sometimes give one party an advantage over the other party in future Court or Arbitration proceedings.
When is a Dispute Appropriate for Mediation?
Technically, Mediation can be used for all disputes. However, this does not mean Mediation is appropriate for all disputes. Each dispute must be analyzed individually in order to decide whether it is right to use Mediation to resolve it.
Generally, Mediation can be appropriate when:
1. All parties desire to Mediate and are interested in reaching a mutual agreement.
2. It is anticipated that all parties will behave as reasonable people would behave in terms of their communication and actions toward one another.
3. Parties desire to remain in control of what the outcome will be. The final decisions of a case are not made by the Mediator. Instead, the parties in Mediation are encouraged to come up with solutions on their own. This results in the parties being in control of the outcome to their dispute, rather than a Judge.
2. Both parties desire to avoid the time and expense of litigation in a Court of Law. Litigation creates a large distraction to businesses, families, and organizations. The traditional Court process can consume a great deal of their time, energy and financial resources. Mediation often allows disputes to be dealt with quickly and productively, while still considering the needs and desires of all parties involved.
3. Both parties desire a long-term workable relationship. A Mediator can be a great benefit to the parties by opening healthy communication channels between them. The Mediator promotes a safe, non-threatening environment that allows the parties to effectively discuss solutions to their dispute. Sometimes reasonable people can see the same set of facts, and place two different and opposite meanings to those facts. The unbiased Mediator can help disputing parties understand why each party is reasonably interpreting the facts as they do. This understanding by both parties can open the doors to effective dispute resolution dialogue.
4. Confidentiality is important to both parties. Disputing parties in Mediation are allowed to keep all information confidential because the case is not a matter of public record and is not presented to a Judge or Jury. This is especially important to parties with business or trade secrets, or to those who have private or sensitive information they do not want disclosed to the general public. The parties in Mediation can agree to keep all outcomes to the dispute confidential.
Generally, Mediation is Not Appropriate when:
1. One or more of the disputing parties is overwhelmed with the desire to hurt, get revenge, or take advantage of the other party.
2. The parties have strong principles that leave little room for compromise.
3. One of the parties is able to manipulate, intimidate, or exercise controlling influence over the opposing party.
4. One or more of the key decision makers, or those with valuable information, are not willing or able to participate in Mediation.
The information provided above only contains brief general guidelines and statements about Mediation. Exceptions to this information sometimes exist. As every dispute is unique, we recommend you evaluate your dispute individually in order to determine whether Mediation would be useful to you.
If you would like more information about the Mediation services our law firm offers, please call us at (660) 833-4606 or e-mail us at ClientCare@MoTrustLaw.com to schedule a consultation with Michael at no charge.
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