Jan 122019

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You have a serious disagreement with — name the other person – your plumber, your boss, your contractor, your mechanic, your neighbor, your spouse. Do you need a lawyer, an arbitrator, or a mediator?

Some of my best friends are lawyers. I use them to write a deed, a will, navigate through complicated permit processes or to write a business contract. For most conflicts, however, hiring a lawyer should be a last resort. Start around $200 an hour and recognize that you are approaching the conflict as a fight, and you’ve hired a mercenary to fight in your place. A trial is public, and if you are on the witness stand, expect embarrassing and difficult questions. Someone is going to win. Someone’s going to lose. Maybe you both lose. Win-win trials are as rare as jumbo jets in Newport. Everyone is going to get bruised (except the lawyer). You don’t have to go through this.

You could engage in arbitration. Arbitration takes many forms, but the essence is that someone or a small panel acts as a judge and hands down a decision. The process is usually similar to trial before a judge, but the process is more flexible and it’s usually private. Both public trial and arbitration are adversarial—win-lose contests. So what’s different about mediation?

First, a mediator decides nothing—not the law, not the winner or the loser. The parties to the conflict decide everything from what to talk about and how to do it. Most important, you can agree on terms in mediation that are impossible in arbitration or trial. Often the terms no one imagined before mediation.

The mediator uses his or her training, experience, and knowledge of negotiation and psychology to clarify the issues and the options that might resolve the conflict. A typical mediation has several stages that may take place within an hour or over days, weeks or even months depending on how complex the conflict is.

I have helped landlords and tenants resolve conflicts in less than an hour. I’ve conducted a year long divorce mediation that involved several houses, businesses, inheritance, and taxes. Over a period of two years I helped a California landowner successfully negotiate with the state department of transportation over damages from taking land for a highway expansion.

A typical mediation goes through these stages:

First, each party states a position—I want (often “demand”) such and such.

Often after some blowing off steam and bitter accusations and history in which each side tries to establish virtue and demonstrate the other’s considerable flaws, we arrive at stage two, what does each party need. Often the demand is for money, but we want money only to satisfy a need—transportation, rent, medical bills, or, sadly—revenge.

Stage three—what options can we think of to meet those needs. Here is where mediation does what neither the court or arbitration can do. If the issue is money, for whatever need, we an agree on a payment schedule. In one case two women agreed to exchange a gun for a saddle and bridle. Discovering options is usually easier if the mediator understands the subject matter from personal experience.

Once we have an option that both parties accept, we are ready for stage 4—the agreement.

The mediator writes an agreement spelling out the terms very precisely—who will do what, when, how, where. A signed agreement becomes a binding contract.

This very brief sketch doesn’t include a lot that can and usually does go on in mediation. The mediator’s role is to help the parties move from the past and present into a better future by staying on point and listening to each other. This requires the mediator not only to be a very good listener, but to be able to read body language and tone of voice and to pick up on small points that might open possibilities no one has thought of.

What’s the difference between mediation, a court decision, or arbitration? Mediation is voluntary, flexible, informal, and far less expensive. Most important the participants decide the case. The mediator has not decided anything.

Wallace Kaufman
PO Box 756
Newport, OR 97365 USA
541 995 4785
cell 541 351 5205

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