Archive

Disputes are an inevitable part of human interaction. Mediation is a powerful tool that can help people resolve conflicts expeditiously and peacefully. The mediation process involves a neutral third party, known as a mediator, who assists the parties in resolving their disputes. Mediation is an excellent alternative to litigation as it is more cost-effective, and disputing parties can reach a mutually acceptable agreement. Mediation generally consists of seven key elements that must be present to ensure a successful mediation process. These elements serve as a road map to reach a mutually agreeable solution. Keep reading to discover the seven elements of mediation.

Interests

Interests refer to the underlying needs and desires of the parties involved in the dispute. Interests are very different from positions. While positions are essentially what the parties want, interests are the motivations behind that want. For example, if one party wants their money back, that is their position. However, when one asks them “why,” they may say that it is because they paid for a service that they feel they did not get or felt cheated. Discovering underlying interests enables parties to focus on solutions that truly meet their needs.

Alternatives

Alternatives refer to other ways the parties can resolve their differences if they cannot reach an agreement. For example, parties may believe that if they cannot reach an agreement through mediation, they can either go to court, use arbitration or continue with the status quo. Understanding the available alternatives (as well as the costs associated with each alternative) can help parties make informed decisions during mediation. Parties can also understand the benefits and the consequences of not reaching an agreement.

Options

Options are any available choices that disputing parties might consider to satisfy their interests. During mediation, parties can brainstorm various choices with the mediator’s help. Such options may include contingencies, conditions, and trades. The more options parties have, the higher the likelihood of reaching an agreement.

Communication

Communication is essential in mediation as it is how parties express their interests, concerns, and options. Communication goes beyond voicing one’s opinions. It involves verbal and nonverbal cues such as tone of voice, gestures and body movements, as well as active listening. The success of a mediation process is hinged on how parties communicate through the mediator. Communication must be open, transparent, and honest. The mediation privileged allows for this as all communications are confidential and can never be used against any of the parties.

Relationships

The relationship between disputing parties can determine how aggressive one can be in specific issues. Mediation is often used to resolve disputes between parties with an ongoing relationship, such as family members or business partners. One needs to ask: how meaningful is my relationship with the other party? Will I ever see them again? By understanding how the dispute affects the relationship, parties can work together to find solutions that meet their interests and maintain their relationships. For example, in a family dispute over an inheritance, family members may wish to maintain a positive relationship with one another rather than create further animosity.

Legitimacy

The sixth element of mediation is legitimacy. Legitimacy refers to the perceived fairness of the mediation process and the outcome. You need an objective standard or reference point to substantiate the fairness of the process and the outcome. This may include your interests, legal rights, and the context of the dispute. A fair agreement in mediation must meet the interests of the disputing parties.

Commitment

Commitment refers to the willingness of the parties to work together to reach an agreement. The currency that the mediator deals in is Compromise. Mediation is a voluntary process, and parties must be committed to listening to each other’s concerns and work collaboratively to find a solution that meets their interests. In addition, both parties should be committed to abiding by the terms of the agreement reached during the mediation process.

Talk to an Experienced Los Angeles Mediator Today

Are you looking for an experienced mediator in Los Angeles? Look no further! Whether you are dealing with a workplace conflict, personal injury, or business dispute, our skilled mediators at Blue Sky Mediation Center can help. Call us at 760.454.7277 or online to book a free consultation to discuss your needs today.

Disputes are inevitable and can arise in any setting, between individuals, businesses, or even countries. Parties can reach resolutions through alternative dispute resolution methods instead of going to court. Two of the most common approaches are mediation and arbitration. While their main goal is to resolve disputes, they differ significantly in various aspects, as discussed in this article.

What is Mediation?

Mediation is a dispute resolution approach where a neutral third party, known as a mediator, works to help disputing parties reach a mutually agreeable solution. The mediator only facilitates communication and helps the parties explore possible solutions to the dispute but does not impose a decision.

What is Arbitration?

Arbitration, like mediation, involves a neutral third party. The neutral party, known as an arbitrator, listens to arguments and evidence presented by each side and then decides on behalf of the disputing parties. The arbitrator, often a lawyer, can decide which parties must abide by.

Key Differences Between Mediation and Arbitration

Mediation and arbitration differ substantially from each other, as discussed below:

Role of Mediator vs. Arbitrator

In mediation, the mediator facilitates communication between the disputing parties and helps them arrive at possible solutions. On the other hand, an arbitrator listens to the arguments and evidence that each side presents and grants an award.

Formality of Process

Mediation is typically less formal and more flexible than arbitration. The mediation process is less structured and not bound by formal rules of procedure. For instance, the mediator can meet the disputing parties together and separately, while in arbitration, the arbitrator cannot hold separate hearings.

Arbitration is a more formal process governed by specific rules of procedure. The parties typically present their case in a formal hearing, and a decision is made based on the evidence.

Participation

While active participation of the parties in mediation is encouraged, in arbitration, the arbitrator controls participation and limits it to facts and evidence of the case.

Decision Making

One of the primary differences between mediation and arbitration is the decision-making process. In mediation, the parties are involved in a negotiation where they can offer creative solutions to their dispute. However, arbitration involves the arbitrator making the final decision, and the parties must abide by it.

Outcome

In mediation, parties can find solutions that work for everyone involved. If the proposed solutions are unacceptable, a resolution must not be reached. In arbitration, however, the outcome is guaranteed, typically a clear decision that may or may not be satisfactory to both parties.

Degree of Satisfaction

Mediation is often more satisfying to the parties than arbitration because the parties have more control over the outcome. Mediation provides a safe space for parties to communicate with each other to find a mutually acceptable agreement. Active participation in the decision-making process typically makes the parties more satisfied.

Arbitration can be less satisfying because the parties have less control over the outcome. The parties only present their case then the arbitrator makes the final decision. The final decision may not be satisfactory to both parties, and they may feel like they have been forced to accept the outcome. However, parties can request a trial in court if they disagree with the arbitrator’s decision, provided the arbitration is non-binding.

Cost

Mediation is generally less expensive than arbitration as it involves fewer formal procedures and less time. Arbitration costs more than mediation because it is more formal and structured and may involve multiple hearings and a longer process. Furthermore, an arbitrator can order one party to pay additional costs to the other party.

Which Approach is Appropriate?

Mediation and arbitration are viable and effective alternatives to the traditional court system. The choice between mediation and arbitration depends on the case’s circumstances and the parties’ preferences.

If you want to have control over the outcome, incur fewer costs, maintain the relationship with the other party, and feel like you can work together to reach a mutually acceptable solution, mediation may be the best option.

However, arbitration may be appropriate if you cannot negotiate a settlement with the other party but still prefer to keep the matter private.

Contact an Experienced Mediator in California Today

If you have a situation that you would prefer to be resolved through mediation, the experienced mediator attorney in Encinitas at Blue Sky Mediation Centre in California can help. You can contact us at 760.454.7277 to schedule a free consultation today.