Mediation offers innumerable benefits and advantages to those willing to engage in the process, but the truth is that even some of the most seasoned attorneys remain somewhat unsold on the option. This can be especially true when the subject matter of a potential mediation case has nothing to do with divorce or family law matters, realms in which mediation is perceived to be quite commonplace.
For some controversies such as construction and engineering disputes, real estates matters, personal injury with highly technical medical issues involved, and a wide array of other types of complex disagreements, mediation can provide an invaluable mechanism for finding common ground. The key, however, is to increase professional awareness of mediation’s tremendous strengths as opposed to traditional litigation.
To encourage greater use of mediation in resolving conflicts of all types, it is necessary to clear up several fundamental misunderstandings a surprisingly high number of attorneys and others still have regarding the process. While most lawyers have a certain degree of familiarity with mediation, many others, large-firm litigators and solo practitioners alike, remain unclear as to the specifics of how a case might typically proceed.
The lack of formal discovery processes is a sticking point for many attorneys whose clients would almost certainly benefit from utilizing mediation to resolve their dispute. However, what those lawyers may fail to realize is the fact that the open exchange of information ideally fostered by a mediator can result in massive savings in time as well as money that would otherwise have had to be spent complying with document production requests, motion practice and the like.
While complex disputes undoubtedly require a high degree of fact-finding for any mediation process to be fruitful, the lack of onerous limitations and obstacles to information gathering placed on the parties can be extremely helpful. Parties can take sufficient time to fully grasp the issues central to the disagreement and prepare themselves to identify a solution acceptable to all.
Also of great concern to many lawyers contemplating mediation is whether the process itself might result in an untenable loss of control over the case and the interests of the client. Many are worried that a mediator will run roughshod over the attorney or convince his or her client to betray self-interest simply in the name of compromise.
Therefore, it is incumbent upon the skilled mediator to reinforce the basic fact that regardless of what transpires during the discussion between the parties, the decision as to whether resolution in such a forum is feasible rests entirely with the client. The purpose of the process is to solve a problem in a mutually satisfactory way, rather than relinquish power to the sometimes unreliable determinations of a judge or jury.
Often overlooked among the many virtues of mediation is the fact that outcomes achieved through such a process will always be entirely voluntary in nature. Both parties to a dispute must agree to have their grievances heard in this manner and will therefore have “bought-in” to the concept of informal, collaborative resolution.
Attorneys should never underestimate the substantial value in having a client feel as though he or she participated fully and meaningfully in the resolution of their case and not have the sense that they were pressured into a settlement under the strain of formal litigation. This can go a long way toward salvaging relationships between the parties and may also help build enduring attorney-client connections.
To learn more about how the mediation process can facilitate resolution of your client’s dispute, contact Phillips Mediation Group at 925-407-2080.
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