Why Mediation Works

Posted by David Armstrong | Feb 03, 2022 | 0 Comments

Why Mediation Works

            Over the course of time that I have been practicing law, mediation has become more and more entrenched as part of the legal process.   When parties can't come to an agreement (mediation almost always means there is a lawsuit, either already in place or about to be filed) having the option of working out agreements before a judge determines your fate is an option and benefit most everyone can agree to.   But why does it work?  

Because everyone has to be involved

            Each party has to be present and part of the process.   Neither side gets to do this without the other being there at the table, to have that party's arguments heard and considered.

Because a trained person is there to help--

            Mediation works because the person who is helping to work out the agreement does not have a ‘dog in the fight'.   The mediator is trained both as to how to help parties work out differences, and if chosen appropriately, also trained and experienced in the law and practicalities surrounding the area of the disagreement.  

Because both/all parties have all the information needed to decide--

            This necessity is actually on the parties and their attorneys.   If you walk into a mediation and don't know enough about the case, it is destined to fail.   You will inevitably want to know more or if a party doesn't have the information needed, there is always that feeling that the other side is hiding something.   Most good mediators I have dealt with will insist up front on both parties being satisfied that there is enough information available to enable an eyes wide open agreement. 

Because both/all parties are heard--

            Good mediators will always listen first, ask questions second, and sometimes will give their thoughts last.  Typically, a mediation lasts 4 hours, or up to a full 8 hour day.  Sometimes, the process can go longer, or there can be multiple mediations.   Any good mediation will involve the chance to tell your story, your situation, and your thoughts about an agreement or what it will take to make one.   It is a hallmark of good mediation practice that you will be heard, and heard completely,

Because the parties are in control--   

            The mediator is not a judge—he/she is not going to make a decision for you.   Instead, you and the other party are in control, and you get to decide if, when, and how an agreement is reached.  

Because the cost may be too high if it doesn't work--

            If there is no agreement at mediation, the final result is that a third party, who doesn't know everything as well as you or your opponent ends up making a decision.  The judge will do the best that a judge can do, but there are limitations on any judge's ability both as to time and expertise to craft out a good and fair decision.   You know your case best.   Mediation works because the alternative is to take the matter entirely out of your hands. 

About the Author

David Armstrong

J.D. University of Houston, 1995


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