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THE BENEFITS OF MEDIATION

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From October 2010, Sophisticated Woman Magazine - AS AN ATTORNEY, my clients often ask whether they should take their case to trial or mediation. My answer is that the question assumes that those choices are mutually exclusive when, in fact, litigation and mediation are two different processes that may run simultaneously toward the end result resolution. Use of one doesn't preclude use of the other and the preparation for each is similar. Mediation is a very effective process to resolve all issues more timely and cost effectively than litigation.

Yet, often people have a misunderstanding of just what mediation entails. It is when two parties use a neutral third party to resolve their differences. The process is voluntary and non-binding. So, if the parties do not agree, no one is bound to accept the other parties offer. Once parties decide to mediate, they select a mediator and a date. The parties then submit to the mediator a confidential letter setting forth their positions and what they are willing to accept or offer to settle.

Initially, during the mediation, the mediator meets with all the parties and discusses what the goals are. Then, the parties break apart and the mediator goes between both isolated parties exploring the demands and offers of each party and what evidence they have to support their positions. The mediator strives to bring the parties closer to resolution at each meeting.

Mediation can occur at different stages of a dispute. Parties can mediate their differences prior to filing a lawsuit and avoid litigation completely. After filing a lawsuit, they can suggest mediation at any point before the judge makes a final ruling, or even after a judge has ruled and an appeal is pending.

Mediation also provides non-legal benefits that a courtroom does not. For instance, the parties have more opportunity to express their grievances without the pressure of a robed judge, a witness stand, an attorney's constant objection and difficult-to-interpret legalese.

Even if a resolution is not reached during mediation, the party is well equipped to proceed to trial after mediation preparation.
Mediation provides an avenue to get a feel for what the other party is seeking and to see what issues and facts the other party considers important. Mediation narrows the trial issues. Mediation allows the parties to participate and design their own settlement. It does require the parties to be open and to compromise. Compromise requires each party to give up something for the greater objective-resolution.

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