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When is mediation used? by Nelson J. Larkins, Esq., posted on September 06, 2016

September 06, 2016 12:51 PM | Anonymous

Dispute is part of the human condition.  However, compromise and agreement is just as much a part of day to day living.  The difficulty is often determining how to move from dispute to agreement.  Mediation is an effective option.

You may wonder when it is appropriate to use mediation.  Here are some thoughts:

First, it is important to understand what mediation is and is not.  Mediation is defined as a negotiation to resolve differences conducted by an impartial party.  It is not one party imposing their will on another.  It is also not a judge imposing a final determination on parties.  It is an effort to use a trained facilitator to allow the parties to explore alternatives and come to their own compromise resolutions.

Now, here are some general benefits of mediation:

Control. Mediation gives parties control of the outcome.  A mediation allows for a structured process and the aid of an expert to reach a consensus parties feel comfortable living with in the future.

Time. Dispute resolution through the courts can take a huge amount of time.  This is not only frustrating because of the wait involved, but the delay may cost money and further erode relationships that need to be preserved in the future.

Money. Formal dispute resolution mechanisms such as trial or arbitration can be extremely expensive.  Mediation can be scheduled quickly, somewhat informally, and generally is much less expensive.

Flexibility.  Mediation can be used in almost any situation where a dispute exists.  It is really up to the parties to determine how formal or informal the process may be, procedures, and how to structure the negotiations.  Again, this is empowering and efficient.

Future relationships. In many instances, parties with conflicts can end up with results that adversely affect relationships that need to continue into the future.  By crafting an agreement through mediation, parties take the first positive step toward their future together.

Specific areas where mediation is used include:

Divorce/family law. Couples in conflict can use mediation to reach resolution and build appropriate agreements for future financial interactions and, quite often, situations with children.  Parties that want to avoid the contentious nature of a contested divorce in the courts can retain a mediator to help craft an uncontested divorce agreement.

Real estate. Home and land disputes can be highly contentious.  Issues over sales of existing homes, owner rights, and association disputes often are more emotional than financial, and mediation offers a cost effective method to explore realistic resolutions.  The Maine Association of Mediators offers a referral service for real estate disputes (insert link).

Business disputes. Business disputes are a perfect example of when mediation can effectively save time and money, and foster ongoing relationships.  Rather than invest massive time and money in formal court proceedings, business parties can create agreements that allow continuing business relationships.

The courts. Mediation is scattered throughout the court system.  In Maine, mediation is used for small claims.  Mediation is mandatory in family law cases where issues involve a minor child.  The Maine Superior Court also has mandatory mediation for parties after initial discovery but before trial.  The courts have learned through practical experience that mediation efforts are highly effective and eliminate the need for many trials.

Private disputes. The sky is the limit with mediation.  The reality is that any dispute can be negotiated with the aid of a mediator.  The key is to have an impartial individual who is trained and educated in the art of facilitating constructive communication.  A court filing is not the only option when a dispute arises, so consider mediation first.

About the blogger:

Nelson J. Larkins is a litigation attorney with an emphasis in the areas of workers’ compensation, the Federal Longshore and Harbor Workers’ Act, employment and labor law, insurance defense, mediation, and family law. His practice involves representation of employers and defendants throughout the state of Maine and national insurance companies. He has lectured frequently to diverse groups on employers’ and insurers’ rights in the workplace, with an emphasis on litigation techniques, return-to-work efforts, and the interaction of employers and medical care professionals. Nelson also has significant experience representing clients in the area of family law and divorce matters.

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