MEDIATION - A BETTER WAY
What is Mediation?
Mediation is a method for negotiating a marital settlement agreement out of court, using a neutral third person to manage direct negotiations between the parties. In mediation, the parties retain decision making power instead of turning it over to an outside authority such as a judge or arbitrator. Usually the parties speak for themselves instead of through lawyers. The mediator facilitates the exchange of information and documentation, identified the issues, and moderates the discussion to keep it on track and constructive. The mediator educates the parties about general principles of statutory or case law but does not give legal advice in the adversarial sense.
The Mediation Process:
The parties to the mediation meet together with the mediator moderating. In the first stage of this process, the mediator supervises the voluntary exchange of information and documents and identifies and reframes the issues by restating them in terms of the underlying concerns and objectives of each party. In this restatement of the issues, the mediator edits out any negative emotions of anger and blame and helps the parties to focus on understanding each other’s point of view without expecting either party to give up his or her own position. The mediator helps each party to prioritize his or her concerns and objectives and to compare them with the priority list of the other party.
Next, the mediator helps the parties to generate multiple options for settlement. The mediator will also add options which the mediator knows from experience other people to have used to resolve a similar conflict. Then, the mediator assists each party in assessing the pros and cons of each option and analyzing which option meets most of that party’s priority needs and goals. Finally, the mediator asks each party to consider in which areas he or she might be able to compromise, while still obtaining enough of his and her objectives and feeling that he or she is not giving up anything essential.
Each party in agreeing to mediate in this model has, from the outset, committed to pursue a result which not only takes care of himself or herself, but also is reasonably fair to the other party. When each party sees and hears the other party sincerely attempting to analyze his or her own proposals in terms of mutual fairness, a cooperative environment develops. Each party is then inclined to be more flexible and able to compromise on some items, allowing the other party to get a reasonable amount of his or her priorities met, provided that the compromising party is also getting the same result for himself or herself.
Even though the pie that the parties are dividing up usually does not get bigger, the solutions are more customized to the personal goals of each party, and each party feels that a “win-win” solution is achieved because their approach to each other is mutually fair instead of “win-lose”. This amicable approach does not entirely eliminate the tension inherent in the process of competing for scarce assets. But it does keep the negotiation process rational, courteous, and ethical, and it allows the parties in the process to affirm their dignity and obtain a practical, satisfactory resolution.
Mediation is a highly effective method for working through a legal dispute. The time spent in communication and organization at the beginning of the mediation process is more than offset by the saved time and money which would have been expended in the traditional adversarial system to conduct formal legal discovery, develop trial strategies, and fight in court.
Getting to Yes: Negotiating Without Giving In, by Bruce Patton, William L. Ury, and Roger Fischer
Difficult Conversations: How to Discuss What Matters Most, by Douglas Stone, Bruce Patton, Sheila Hee, and Roger Fischer
(Copyright 2014 by Faith Jansen. Faith Jansen, Attorney at Law, does divorce mediation, cooperative and collaborative divorce, pre-marital agreements, post-marital agreements, juvenile guardianships, and adoptions, in Walnut Creek, Contra Costa County, California. See her website at: www.fjansenlaw.com and find her on Facebook at Faith Jansen Attorney at Law.)