Preparation Pays Off

MEDIATION: PREPARATION PAYS OFF

by Cynthia L. Golomb

Conflict is a thread that runs through international and domestic affairs, as well as our personal lives. While conflict is inevitable because nations and individuals differ, the management of conflict presents us with specific choices. As individuals, we may only have a modest impact on the course of international or national events, but we can choose specifically how we will respond to conflict when it arises in our personal lives.

In our litigious society, many individuals choose to resolve their differences by going to court. Litigation undoubtedly plays a crucial role when people cannot work out their differences with one another. Often, however, a court-imposed solution produces results that are not satisfactory to either party in a dispute. Increasingly, individual litigants and society as a whole are turning to other mechanisms to manage conflict. These other mechanisms include various processes such as mediation, arbitration, settlement conferencing, and consensus building. They are generally referred to as alternative dispute resolution (ADR) with the goal of helping people resolve disputes peacefully in a manner that improves relationships and improves social skills.

One form of ADR, mediation, is getting more and more attention. Mediation is a process where a trained neutral person facilitates a conversation between parties in a dispute. In comparison to litigation, mediation is a relatively informal process. The goal of mediation is to help these parties reach an agreement that is typically reduced to writing. Currently, many courts in Maryland are ordering litigants in civil cases to participate in mediation in advance of a hearing before a judge.

Although mediation is not characterized by the formality of a trial in court, effective preparation pays off by enabling the parties and mediator to get to the heart of the dispute efficiently, whether mediation is initiated by an individual's choice or by a court's order. In general, effective preparation contains several basic elements: organizing information; understanding limitations; developing priorities; and retaining emotional resiliency and openness to new possibilities.

Organizing information is a crucial aspect of preparation for mediation. As we all know, people can become embroiled in fights because of a basic misunderstanding of the facts involved in a particular transaction. If, for example, an issue relates to the division of assets accumulated during a marriage, it is only sensible to identify the assets, how the assets are titled, and the value of the assets. Having this information readily available to discuss at mediation not only saves time, but helps to build trust between the parties.

An understanding of one's legal limitations is also essential to preparing effectively for mediation. To that end, it is useful to obtain legal advice about one's rights and responsibilities under the law before mediation begins. Mediation is not a substitute for legal services. Competent mediators always tell parties that each should properly seek individual counsel for advice on how to interpret the law and on the particular elements that should be included in an agreement. No purpose is served if parties reach an agreement which is ultimately not enforceable by the courts.

Thinking about one's priorities in advance of mediation is a useful exercise. While priorities may shift over time, an honest appraisal of one's situation will likely reveal that certain items are more important than others. For example, in a dispute about money, it may be more important to be paid a partial sum of the money immediately than to get the entire sum of the money over a period of time.

Retaining emotional resiliency and openness to new possibilities is often easy to say and difficult to achieve. No one wishes to be considered rigid or hostile, but it is not uncommon for people in a dispute to hold onto their positions for emotional as opposed to practical reasons. Mediation provides parties with an opportunity to find a face-saving solution to a problem with the possibility of a fresh approach and a superior result that neither party may have previously considered. In a successful mediation, the parties themselves choose among various options best suited to their needs.

Like any other difficult task, preparation is the basis for achieving a desired result. By keeping the above suggestions in mind, effective preparation for mediation may assist in managing conflict intelligently.

Cynthia L. Golomb is an attorney and mediator who focuses her practices on matters related to families. Her main office is in Howard County, and she can be reached at 410/531-1619.

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As published in the Columbia Business Monthly,

Lawyer Focus Section January 2003, page B4

Cynthia M. Lifson was formerly known as Cynthia L. Golomb and can still be reached at 410-531-1619 or by clicking the contact button below.

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