Is mediation a waste of time?
That will depend on whether or not you have experienced some form of mediation or not. Ever asked a friend to help you solve a problem? It’s a form of mediation.
Whether you know it or not, you negotiate almost everything you do…even if only with yourself.
Mediation is used when a negotiation goes wrong. Mediation is a process. The process is a quest for a solution. Like finding the missing piece.
The Arizona Association of REALTORS(R) puts out a mediation / dispute resolution booklet, complete with information on the process and names of recommended mediators and arbitrators. This information is more about voluntary mediation and is specifically for those who have used a REALTOR(R) in the purchase, sale, or lease of a property.
Over the last 5 years we have seen an increase in foreclosures and questionable efforts on the part of lenders to negotiate loan modifications with borrowers who are about to lose their homes. States like Hawaii, Washington, Connecticut, have enacted Foreclosure Mediation Programs.
Miami-Dade County was an early subscriber to mandatory mediation between lenders and borrowers: mediation success rate was 76%.
Mandatory Mediation is addressed in an article by the Arizona State Bar Association:
Many of the Justice Courts in Arizona require the mediation of small claim lawsuits before the suit is ever allowed to be heard by the judge. In the Superior Court, divorce cases also must go through mediation before the judge will hear the case. The mediators in these cases are volunteers and, thus, the parties are not charged. Most judges in civil cases in the Superior Court will press the parties to go through mediation before a trial date will be set. There is a process in civil cases whereby a Superior Court judge can be tasked to convene a “settlement conference,” which conference is similar to a mediation.”
That’s where I come in as a mediator for the Maricopa County Court system who sometimes does as many as 30 mediations a month.
What I see when I invite the parties into the mediation room, is discomfort, fear, and sometimes, bravado. My job as a mediator is first, to cut through the tension and get the parties at ease with the surroundings. Next the mediator explains the process, including the confidentiality of the proceedings (signature of a confidentiality statement is required), after which each party tells the mediator their impression of the issue(s). Things are not always what they seem and many times the parties discover that they didn’t have all the information. These are the easy ones. Usually the parties come to a quick resolve and the settlement is filed with the court.
I’m in awe of the ability of two people to solve their problems when the element of fear is removed. That’s one of the crucial responsibilities of the mediator: create a safe environment.
Attorneys in mediations
When I was first trained in Hawaii, the attendance of an attorney was frowned upon. In Arizona, during my mediations, I have found attorneys to be of profound help to their clients in most mediations and it’s a pleasure to welcome them to the session. There are some attorneys who are still about “right” and “principal” and the bravado of intimidation, but they are really in the minority. I have actually had 2 attorneys make veiled threats to the other side, especially when the other side is representing themselves, “pro se”. In each situation we went to a caucus, but to no avail. At that point, we set a court date.
For those attorneys who “get it”, I’ve complimented them and asked why such a positive attitude towards mediation. One young attorney told me that as women entered the legal profession, there became a more gentle attitude to resolving disputes. In his opinion, mediation has put a positive face on the legal system.
When the disputants have come to a solution, an agreement is written and signed by all parties. Since all parties sign a confidentiality statement before beginning the session, it’s a good time to tear up all notes and thank each other for the opportunity to meet and come to a solution. In the situation of a court-mandated mediation, the agreement is then given to the court Clerk who handles the file and the disposition of the complaint.
Give mediation a try. A good mediator will guide you through the process by listening, keeping the discussion focused on the issues, and working with the parties both collectively and privately in the hopes of the parties can come to an agreement.
Give mediation a try.
We can all profit from mediation.
- Arizona Attorney General’s Office Trained Mediator
- Mediator in Maricopa County Justice Courts
- Hawaii Trained Mediator
Proud resident of Uptown Sedona