What is Mediation? (And Other Types of Dispute Resolution)
There are a few broad categories of dispute resolution. These include litigation, arbitration, open or passive feuding, capitulation, general avoidance, and collaborative problem solving – each with its own advantages and disadvantages. Of these, the most common forms of “formalized” dispute resolution are litigation, arbitration, and mediation.
Mediation is a form of problem solving, and is desirable because it is usually quicker, more efficient, less expensive, less volatile, and less anxiety provoking than the other structured forms of dispute resolution. Mediation also tends to result in resolutions that are more durable and satisfying. It can bring closure to disputes that may have been lingering for long periods of time, which can fester, degrade one’s quality of life, and be enormously costly in terms of time, energy, and financial resources.
Mediation doesn’t always resolve issues of personal animus between parties, but with surprising frequency it can improve things. In other words, parties can dislike each other and still have a very successful mediation, while at the same time there’s a good chance the relationship will improve anyway.
Comparing mediation to other formalized resolutions (litigation or arbitration), the successful result of a mediation is a legally enforceable agreement entered in to by the parties themselves. With litigation or arbitration, the outcome is determined by a third party (judge, arbitrator, and/or jury), and usually takes significantly longer and cost significantly more.
Comparing mediation to non-formalized dispute methods (feuding, capitulation, avoidance) the result comes out of a a carefully facilitated process, without most of the collateral damage that other dispute methods can result in – prolonged anguish, bruising cost, and incredible amounts of wasted time and energy.
Mediation works by being both structured and flexible, and because it is lead by someone who is not does not have a specific interest in the outcome of the dispute. The process creates boundaries while focusing participants on their objectives rather than distractions.
Disputes often become so life-consuming because much of everyone’s energy flows toward trying to resolve distractions or forcing another party’s hand rather than constructively resolving what is actually a common problem. The mediator’s job is to keep parties focused on the common problem in a way that respects everyone’s privacy and autonomy. This also means that the distractions are acknowledged and addressed, but never get confused with the actual problem.
Mediation is voluntary and confidential. Disputants are guided through their negotiation, and create a mutually agreed upon resolution. An agreement isn’t final unless all parties say so – no one is forced to come to an agreement. You might end a mediation without an agreement, but more often than not, parties are able to come to agreement.
Finally, when parties create an agreement, it is legally binding in the same way that any other contract would be.