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Understanding Mediation



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In practically every state and in every jurisdiction, mediation serves as an unofficial branch of the United States court system and helps to keep thousands of cases clear of courtrooms each and every year. The impact of mediation is unquantifiable, but it is easy to say that if it wasn’t for alternative dispute resolution in all its various forms, the court system of the United States would be so clogged and so overloaded that the entire system would essentially break down. Let’s take a look at how mediation works and when it is appropriate to use it to resolve a dispute of your own.

In most cases, a mediator is used to help two private parties (it could be two individuals, an individual and a company or even two companies) communicate in a clearer fashion. A mediator has no power of judgment, although a resolution is the obvious desired result of both parties. The mediator, instead, helps the two sides talk out their problems or helps set ground rules so that both parties feel comfortable expressing their points to the other side. Mediators are used for several reasons, but they are used most commonly because it is a much faster, much more direct way to solve disputes between parties than waiting for the slow wheels of the state or federal court system to click into place. Using a mediator can also be significantly less expensive, and it helps give both sides the feeling that no one necessarily “lost” or was “beat”; instead, both sides essentially acted like adults, talked things out and agreed upon a resolution without one being forced to act.

According to historians, mediation goes all the way back to the ancient Greeks and Romans, but the practice fell out of style in the Middle Ages and was only brought back within the last few hundred years. Today, thousands of disputes are solved through mediators each and every year.

There are many different kinds of mediation that tend to all fall under this umbrella like term. In some cases, two parties may use a conciliator to solve their issues. Depending on the agreed upon terms that both parties sign off on, a conciliator will act more like a lawyer for both sides simultaneously. He or she will often have express knowledge of the subject or the issue that the two sides are debating over and he or she may provide relevant facts as they pertain to the case being heard. The fine print in the case of mediation is always decided on before the mediation begins so that both parties feel at ease with the terms and conditions.

While there is no iron clad list of rules and ethics for mediators, they are generally expected to follow the same basic unwritten laws that include impartiality, neutrality and honesty at all points during the mediation. Often times, both parties will have to agree on the mediator chosen. This selection process is often the most drawn out part of the mediation process.



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