Although, more and more, mediation is becoming the preferred way for people to settle their disputes, there are still a lot of misperceptions about it. Here are the top 10 fears and common concerns that I hear regularly from people that prevent them from taking the wise approach to conflict resolution.
1. Mediation only works if you already agree about most things. The whole point of mediation is to solve problems you don’t agree about. The process helps you find compromises and common ground when before you didn’t believe you had any. Just think of mediation as an alternative to going to court, except that the process is private, less expensive, faster, and you maintain more control over the outcome. You don’t need to agree on the issues. You just need to agree to mediate. From there, each of you will work with your mediator to negotiate and problem-solve in order to develop solutions to your unique set of problems.
2. The mediator makes all the decisions. The mediator is actually there as a neutral third party to move the process along. He or she doesn’t decide anything at all and has no power to do so. Only the people sitting in mediation can make decisions about their situation. The mediator may help by guiding you in your thinking, offering suggestions, and may point out options to assist you in brain-storming solutions. But, ultimately, you are in the driver’s seat when it comes to developing solutions that work best for each of you.
3. Mediation is too time-consuming. Mediation almost always takes far less time than a contested court proceeding, when you consider all the hours your attorney must put in to prepare for court. Also, because mediators charge less than trial attorneys, you save money.
4. Mediation is touchy-feely. Mediation is not therapy. To resolve certain difficult issues it can be helpful to talk about the emotions or reasons behind them, but the goal in mediation is not to talk through your problems as you might in therapy. Instead, the goal is to tackle problems until you find a solution that works for everyone. From there, your mediator will help you draft an agreement that will be enforceable in court.
5. Mediation is not for people with a lot of assets or complicated businesses. Mediation works in almost every situation. As long as parties are willing to sit down together to meet and discuss their conflict, mediation is possible. Mediators have been used to resolve conflicts in business partnership cases, employment and contract disputes, separation and divorce cases, family conflicts, eldercare matters, landlord-tenant and real estate cases, and a host of other types of cases. The value or type of assets is unimportant. The same process is used to resolve them. Mediators are trained to work with any type of asset.
6. People who mediate don’t use lawyers. Most mediators strongly suggest that both parties hire an attorney for consultation during the process. The mediator’s role is not to provide legal advice (although legal information is given). Each person may wish to consult with an attorney to discuss strategy, rights, and what the potential outcome would be in court.
7. If there’s a power imbalance in the relationship to begin with, the weaker party won’t be protected in mediation. This concern comes up frequently and is expressed most commonly by women going through a divorce, or employees in conflict with their employers. The belief is that, without an aggressive attorney by their sides, they won’t feel they can have a voice in mediation. In fact, mediators are trained to insure that everyone is given an equal opportunity to speak freely and openly during mediation and that everyone is heard. Mediators often act as ‘interpreters’ for parties to be sure that their messages are being conveyed clearly to the other side. In this way, the process can move forward and everyone’s interests are represented in the final agreement.
8. A mediated agreement is not legally enforceable. The mediation process is not only accepted by the courts, it is now highly favored and encouraged by the court system and any agreement reached by the parties is considered binding and enforceable. When the parties create an agreement with the help of their mediator, it will be drafted in a legally acceptable form, signed and notarized. In the case of a divorce, for example, the divorce Stipulation of Settlement Agreement, will be submitted to the court with the divorce petition and attached to the court order. Once this happens, the agreement reached by the parties will be binding and enforceable.
9. Women are always at a disadvantage in mediation, particularly if the mediator is male. Mediation is blind to gender. The process is not skewed in any way to give either spouse better chances. A good mediator will ensure that both parties have a voice and an opportunity to speak and negotiate. The mediator’s gender is irrelevant because the mediator acts completely neutrally.
10. Mediation doesn’t work unless you have good communication with the other person. Most people are in conflict with one another because they don’t have good communication, so this is definitely not a requirement for mediation. It’s even possible to mediate without ever sitting in the same room or speaking directly to each other. At Mediationline, for example, we have successfully mediated cases where the parties have not been in the same location and have chosen to conduct their mediation over email and through separate exchanges with a mediator. No matter what the style of communication, mediators are skilled at drawing out shy and withdrawn parties, diffusing tense situations, and bringing balance and equity between the parties so that everyone has a voice in the process.