Mediation: Getting to the Heart of the Matter
Many parties involved in civil disputes are overwhelmed waiting for their day in court and a chance to be heard. When the day finally arrives, they are disappointed if they feel that they still weren’t heard. They’ll tell their stories to clerks, their attorneys, and anyone who will listen. Even after telling their story to a judge, they are left with a false feeling of relief that the problem or issue has been resolved, and end up frustrated again when yet another problem arises. They become frightened at the prospect of having to return to the intimidating court process. This has been a persistent problem and one that continues to plague courts daily.
Mediation has proven to be an effective tool in alleviating the actual spirit of the dispute, which is comprised of a whole list of problems and not just the matter that is presented to the judge. Family disputes tend to manifest themselves as an argument over who gets full custody, or who gets grandma’s jewelry, and mediation can effectively break down the walls so that negotiation and settlements not only encompass the true nature of the conflict, but also establish an atmosphere of openness and honesty so that negotiations and settlements can continue.
According to Chief Judge Pamela Gilbert-O’Sullivan, Macomb County Pro-bate Court, “The benefits of mediation go far beyond the resolution of disputed issues. What is so intriguing about the process is the benefit to the family as they are so engaged and resolve issues without continuing court intervention. They walk away feeling much better about very difficult family dynamics in addition to having solved the problem. It works!”
Attorney Ralph Engle adds, “We’re not just solving the problem, but are teaching people to solve their own problems and communicate in a way that is conducive to establishing agreements, not further polarizing the parties as the formal court process tends to encourage. My concern is that there is pressure from the mediator to get a settlement that day, when in actuality it will probably take two or three sessions. We’re dealing with 15 to 20 years worth of stuff. We have to change the norm in the eyes of all those involved. In my opinion, it is the job of the attorney at these sessions to ensure their client is not giving up their rights through the process of compromise. But the reality is that the parties probably wouldn’t like what the judge would do anyway and at least, in mediation, the parties can choose for themselves what to give up and what to hold onto.”
When compared to case evaluation, Engle says, “there is an external pressure to settle. The parties already know they want settlement, they just don’t know where to begin, and throwing a number at the case after listening to minimal argument and explanation or perspectives can make the parties feel more like they’re being pigeon-holed into a preconceived notion based on the ideas of the evaluator.”
Engle adds, “It’s understandably frustrating. While the process may dispose of cases, it has not effectively re-solved the issue.” In mediation, movement occurs be-cause of an internal expectation and desire to settle, and improved understanding of the other party’s perspectives and reality. They’re settling because they want to and not because there’s a penalty if they don’t. The reality is that, typically, the cases that make it all the way to trial are plagued with unreasonable and unrealistic expectations of parties who don’t necessarily have adequate understanding of the strength of the opposing party’s case, or perhaps the weaknesses of their own case. Through the process that is used in the facilitative mediation process, the parties begin to see these strengths and weaknesses, work together to address them and then, ultimately, resolve not only their case but also the real conflict at hand.
By Danae V. Hanes, Court Programs ManagerThe Resolution Center, Mount Clemens