"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."
Sandra Day O'Connor
The confidentiality of the mediation process encourages the participants to have open and honest discussions.
If the dispute is extremely complicated, has more than three parties or involves a special circumstance, the parties may wish to consider using two mediators or additional neutrals such as counselors, financial advisors, or any other persons with expertise or information that would assist the parties in reaching a settlement agreement.
Mediating Without Attorneys:
Sometimes parties choose to not have attorneys help them settle. Instead of each party hiring an attorney, they jointly hire a mediator trained in interest based negotiation to help them reach an agreement. If the parties need to file their agreement with the court as in a divorce or other civil law suit, they can retain the mediator or another attorney to act as their “scrivener” and draft a final order. Mediators and scriveners act as neutrals, so the parties cannot rely on them for legal advice This means that once the agreement is in writing, each party should take his or her copy to a lawyer who is able to explain the legal rights and responsibilities of each party that are set out in the order.
Many civil disputes may be quickly resolved in this manner.
“Musts” for the Process:
In order for this model to work, parties must be willing to proceed honestly and in good faith. Parties must listen to each other and communicate in a courteous and respectful manner, and parties must take the concerns of others into consideration when reaching a final settlement.
Options instead of Offers:
Adversarial forms of mediation use offers and demands. In interested based mediation, the parties agree that each one of them will supply all of the information in his or her possession that is needed to resolve the dispute. This allows the parties to understand and develop realistic options for settlement. Once the parties believe they have listed all possible options, they review each one and eliminate any options that do not take into consideration the interests of everyone involved.
If parties get “stuck” and need help resolving some disputed issues, interest based mediation can save the day.
Settling with the Help of Your Attorney:
Parties review the rules of mediation and sign an interest based mediation agreement. The focus of this process is centered around the interests and goals of the parties. The parties take turns expressing their understandings of the dispute and what each one would like to see happen to resolve the matter. In other words: the parties tell each other what they want and “why” they want it. In positional mediation, the parties are in different rooms and mediators go back and forth carrying offers. In interest based mediation, the parties stay in the same room. By meeting face to face, the parties are able to directly communicate with each other. Face-to-face meetings save time and allow any misunderstandings or false assumptions to immediately be corrected.
Interest based mediation is a non-adversarial dispute resolution process which can reduce the amount of time and money necessary for parties to reach an agreement. The parties and their attorneys meet with a neutral who is trained in mediation and interest based negotiation. This mediation model is designed to eliminate many of the communication problems that exist in some methods of dispute resolution. In interest based mediation, parties must not only say “What” they want; they must say “Why” they want it.