Is Mediation What You Think It Is?

Working in the divorce arena, I’ve discovered that many folks are misinformed as to what mediation really is. To clear this up, I talked with local Credentialed Distinguished Mediator and family law attorney, Linda McLain. By local, I mean she serves clients in 13 nearby counties from two offices, one in Navasota and the other in The Woodlands.

What is it?

In Linda’s words,

mediation is a forum in which an impartial person, the mediator, facilitates communication between parties to promote reconciliation, settlement, or understanding among them. It is important to note that settlement is only one of the possible ‘outcome goals’ of mediation. The process contemplates that although not every case will settle, there’s value to the process even when it does not settle.

“It wasn’t like I saw on television…”

This is a frequent comment from people as they leave a courtroom trial. Yes, in real life a courtroom trial is normally not like an episode of Law and Order. Our court system simply does not have the resources to allow all litigants to “have their day in court.” Wanting to have one’s day in court usually involves hopes for some kind of emotional vindication. But the litigation system is not about emotional satisfaction. Linda explains that

Success in litigation is often directly related to the lawyer’s ability to marshal the client’s information to a usable set of condensed facts cutting away any extraneous information.

Emotional vindication usually falls under the definition of extraneous information.

Linda further informs that

It is not the Court’s role or purpose to address the human relationship aspects of what got the parties into the legal process. Courts are charged with the appropriate and swift administration of justice, and are called upon to apply a fairly mechanical and arbitrary set of procedural and substantive rules of the facts of each case. The discord in the relationship between the parties is often the fundamental issue that the parties need to resolve or repair.

It is not the Court’s responsibility to attempt to piece together a broken relationship. However, in mediation you can have the opportunity to patch your relationship with your neighbor, co-worker, etc.

Isn’t arbitration the same thing as mediation?

In a word, no. While neither arbitration nor mediation is set in a courtroom, arbitration is similar to the courtroom in its limitations. You are hiring a stranger to decide what is best for you or for your family or for your business or whatever it is that you are disputing. In arbitration you are giving up the right to make your own decisions. Linda explains that mediation

…places the responsibility for customer satisfaction on the very people who have a stake in the outcome – the parties themselves.

What about the cost?

People can usually get through mediation faster and with lower cost than going to trial with full discovery and hiring experts. Linda can provide another viewpoint,

On rare occasions, I see cases which do not settle because one party has put too much money into the ‘fight’ before getting to mediation … literally having an unpaid attorney’s bill which exceeds the top monetary settlement the opposing party could ever be expected to pay. That said, most of the lawyers for whom I mediate on a frequent basis do an excellent job in assessing what information is needed in order to come to mediation prepared.

On the other hand, the key to keeping mediation costs to a reasonable level is preparation. As Linda explains,

I cannot tell you how much time and money is wasted when litigants arrive at mediation unprepared for the process.

How do I know if I am getting a good mediator?

Anyone can be a mediator, but there are ways to tell if you are hiring a qualified mediator. Look for a mediator who has completed the 40-hour basic mediation training by a recognized dispute resolution organization. Additional training is required for mediators who work in parent-child relationship disputes. The Dispute Resolution Center (DRC) in Bryan offers both types of mediation training as well as mediation services. (Disclosure: I am a board member of the DRC.)

Additionally, Texas has ethical standards of practice for mediators and a voluntary credentialing program. The Texas Mediator Credentialing Association (TMCA) has standards of practice that are mandatory for TMCA credentialed mediators. The Credentialed Distinguished Mediator (CDM) is the highest TMCA qualification. At www.txmca.org, you can search for local mediators who hold the designation of CDM.

When choosing a mediator, look for one with a sterling reputation for ethics and interpersonal interaction with the clientele. A mediator should be someone you can trust to be impartial, someone who honors his or her word and maintains confidentiality.