Basic Concept of Mediation

In this era of huge litigation volumes, exploring the potential for alternative dispute resolution mechanisms has never been more important. The cost of litigation today, emotional and financial, is often so high that at its conclusion, it is hard for either party to be a winner.

Chief Judge Judith S. Kaye

Mediation is commonly associated with divorce, but this process is being applied successfully to the resolution of various disagreements: between customers and businesses; with neighbors; in family conflicts; in divorce, child custody, visititation and support; between businesses as well as employment and labor/management issues.

Good will is difficult to measure and value, but mediated parties are generally more cooperative with each other upon the conclusion of mediation. In addition, because resolutions are mutually created and agreed upon rather than imposed, compliance is greater than secured through litigation with fewer return visits to court for enforcement.

Mediation is not touchy feely counseling. Issues related to blame, fault and guilt must be referred to a counselor. Mediation is not a panacea for all manner of disputes and disputants.

Certain issues require a full hearing and a judicial determination. Certain disputants present a need to engage in protracted litigation to punish their opponent and/or have their day in court in order to disgorge their story and exact their pound of flesh, no matter the financial costs. This mentality is analogous to Primal Scream Therapy popularized in some counseling circles.

A client's attorney may participate in the mediation process. The attorney may be consulted and provide advice to the client between mediation sessions or actually attend mediation with their client. Upon settlement, the mediation participants are encouraged to consult with their attorney prior to signing a Memorandum of Understanding, Contract or Property Settlement And Separation Agreement.

 

 


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