If we are unfamiliar with something, we generally stay away from it. How familiar are you with mediation?
I wonder if I would have done things differently six years ago when I took legal action against the seller of the home I purchased after I discovered undisclosed defects. As is probably typical with others in a similar situation, I sought counsel from different people around me. I met with an attorney. I sued the seller. But… maybe I should have hired a mediator instead. Mediation would likely have cost less, would not have resulted in a public record, and may have encouraged a peaceful resolution.
Over the last several months, I’ve had the privilege of getting to know Nancy Tavares, an entrepreneur and a mediator. Nancy is part of my Women Making an Impact (WMAI) networking group, where she is helping other women understand mediation and its benefits. Nancy has a background in solving issues as a bank consultant, and after her kids were out of the house, Nancy decided to go back to college. In 2015, she graduated from Marquette University in Milwaukee, Wisconsin, with a Masters in Dispute Resolution.
Nancy and I recently met. Here is what I learned.
Mediation is voluntary, informal, and confidential. The mediator is a neutral, third-party facilitator for parties to make their own resolutions.
- What can be mediated? Mediation is often a favorable option for a dispute that requires an ongoing, working relationships between parties. Such disputes may include divorce, congregational peacemaking (for churches), eldercare (for families and siblings), condo associations, and tenant/landlord arrangements—just to name a few.
- What is the mediation process? Before mediation begins, the mediator will go through a screening process with each party to determine if the issue can be mediated (meaning, it’s not a legal issue) and to explain the mediation process and costs (usually billed by the hour for the mediated session and split between parties). If the mediator accepts the parties as clients, the dispute will move toward mediation and a session is scheduled. Each party is free to walk away from mediation at any time during the process.
- What does a mediation session look like? The mediation will take place in a conference room or another neutral setting. The session begins (and hopefully ends!) with both parties in the same room. If an attorney or an insurance adjuster is present during a session, the mediator directs communication only toward the individuals involved in the dispute. The mediator starts the session by listening to each party present his or her side of the dispute. The mediator then begins to ask questions, probing to uncover root issues. The questions are not to determine who is right and who is wrong. Rather, the questions will be designed to move the parties toward resolution. Sessions generally range 2-3 hours, depending on the issue type.
- What is the goal of mediation? The goal is to preserve and restore relationships through an agreed-upon resolution. Resolution requires compromise. Resolution requires thinking outside of the box. The parties often write a resolution at the end of the session. Sometimes an attorney or insurance adjuster will write final resolution documents based upon the session’s conclusion.
- Does mediation require follow up? Many times, the initial session is all that is required to resolve a dispute. Sometimes though, parties include a clause in the resolution document to mediate again if a resolution goes awry.
To learn more about Nancy and mediation, please visit Nancy’s website.
Accounting/Tax Tip: Consider adding a mediation clause to your business’s contracts. I am reviewing my client contracts to determine if a mediation clause is appropriate. If you become my client, you may see a mediation clause in the engagement letter!