Robert Wildau NewSouth Mediation Services

Dispute Resolution FAQ

What is mediation?

It's a process in which a skilled go-between--a mediator--helps people in conflict work out mutually satisfactory solutions. The mediator helps them define their issues, collect information they need to make decisions, generate options, then negotiate agreements. The parties make all the decisions themselves, but only when they are ready to do so.

How is it different from arbitration?

An arbitrator works just like a judge: she makes a decision or "award" for one of the parties, after a trial-like hearing which she totally controls. There is no right of appeal, and the award can be enforced in the courts just like any other judgment.

Is all mediation just the same?

No, there are many different approaches to mediation, depending on how active the mediator is in directing the parties toward certain outcomes. Comparisons are often made between:

the "problem solving" mediator who keeps his opinion private while helping parties formulate their own solutions, and

the "evaluative" mediator who tells each party how he thinks they would do in court and therefore how the case ought to be settled.

Neither approach is necessarily better, though lawyers tend to prefer the evaluative mediator who will "twist arms" to get a settlement.

In cases where the parties will have continuing relationships, as in divorces or business breakups, the problem-solving style may give them tools for working out future differences by themselves.

Can mediation and arbitration be combined in one process?

Certainly. Mediation can be used first, with the understanding that if agreement is not reached, the mediator will act as an arbitrator to decide the remaining issues. Or, the parties may choose to start with an arbitration in which the arbitrator keeps the award under seal and proceeds to mediate the case. Only if the parties can't reach their own settlement will the award be opened. These themes have are many variations which can be used to "fine tune" the process to the needs of the parties and the particular case.

What if my case is already in court?

Even if a lawsuit is already pending, the parties can always agree NOT to send it to a judge or jury and instead use a different and less expensive process. Most courts encourage the use of so called "alternative dispute resolution" (ADR) which in fact removes cases from crowded dockets.

Can I use a lawyer in my case without inflaming the situation?

Yes, but look carefully to find a "mediation-friendly" lawyer who will let you decide how to use her, rather than insisting on controlling the conduct of the case. Such an advocate will provide advice and insight, but not tell you what to think. "Collaborative Practice" is an increasingly popular process, particularly in domestic cases in which both spouses have lawyers but they agree NOT to go to court except to get the divorce when everything else is settled. That way the diplomat's skills become as important as the warrior's in "winning" the case. If they can't bring about a settlement, the lawyers have to withdraw and the parties find other counsel to do battle.

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