MEDIATION is not Meditation !   


 

 

 

 

Learn about Mediation and Arbitration
     The explosion in the use of alternative dispute resolution in the courts and in the workplace has created a large and increasing demand for trained mediators and other neutrals. Among the various approaches to alternative dispute resolution, mediation is the most popular. Judges order mediation, agencies strongly encourage mediation, and many employers are adopting mediation as a means of resolving workplace disputes. Although courts are mandated to encourage the use of mediation, there is limited familiarity with mediators possessing the desired statutory expertise. (Dr. Z exceeds those concerns because he is Florida Supreme Court certified in all areas of mediation, and licensed to teach Florida Real Estate Principles, Practices and Law.) If the courts expect to establish credibility of mediation as a tool of litigation reduction, efforts must be mounted to identify the substantively qualified mediators and to call upon such qualified mediators when cases arise in their field of expertise. These qualified mediators like Dr. Z, have to overcome the prevailing notion of being an unskilled do-gooder with an approach of one-method works for all situations. The courts have to overcome their prevailing notion that limited funding attracts more than unskilled do-gooders with an approach of one-method works for all situations. As the courts, develop and exhibit sufficient confidence in the qualified mediators, this will help diffuse the anxieties of those who have traditionally looked to the courts for protection of their legal positions. This anxiety or perhaps self-interest is most manifested in the reluctance of lawyers to surrender the potentially much more lucrative litigation track with its depositions, motions, discovery and endless appeals. Yet, more and more advocates are becoming receptive to the greater effectiveness of mediation in attaining client satisfaction in contrast to the risky win/loose potential of litigation.
Alternative dispute resolution methods have the greatest advantage of moving much more rapidly (weeks or months instead of years) and inexpensively than courtroom litigation. There are plenty of experts on the laws, but unfortunately, most lack all the skills needed to mediate effectively. They argue that many methods of alternative dispute resolution do not provide due process nor do they protect litigants' rights. This shift to mediation is an endorsement of how all disputes should be resolved, by negotiation between the disputants. Mediation is, after all, merely an assist to disputing parties by introducing a facilitator to encourage the parties to resolution. Thus, mediation, as distinguished from litigation, and even arbitration, avoids surrender of the parties’ control over the outcome to some outsider, either an arbitrator or a judge. The parties’ retain control of their dispute and its resolution. They may in the course of their negotiation or mediation, jointly decide that some portion of the whole of their disute should be handled by arbitration. Arbitration in that circumstance is merely an addendum to the negotiation/mediation process.
The increasing endorsement of mediation may also be due in part to its participatory role for the claimant, not only in taking part in the discussions and in the selection of the preferred mediator, but in formulating a prospective resolution. Too often in litigation and even in arbitration, the claimant’s goals and voice are lost to the lawyers, who often shift what might have been a need to vent, or ask apology, or structure a prospective training program, into a monetary claim, wherein the claimant may not even be called to testify. Certainly in litigation the surrender of control to an outside-designated judge, or in arbitration to a lawyer-selected arbitrator usually denies the claimant an active role in the dispute resolution process. In mediation, the claimant has the opportunity to vent, the opportunity to share in the selection of the mediator, including perhaps one from the ethnic minority, and the right to decide on the outcome of the dispute, even if it only be an apology, or the formulation of procedures to avoid future repletion of the perceived wrong.
Mediation is popular because the parties must agree to the outcome; the mediator has no power to impose a resolution. Also, mediation often allows exploration of creative resolutions that would not be available through litigation and sometimes has the added benefit of improving relationships between the parties, which can be a significant benefit in some situations. The conventional wisdom has long been that mediators are valuable solely because of their process skills in bringing conflicting parties together. That may be true in disputes where both parties are of equal power or where both are adequately represented by lawyers. And it may also be true where the subject matter of the dispute is so arcane that there is no body of experienced mediators with knowledge or expertise in the field. But, that is not the case with Dr. Z. He compliments his process skills with his expertise in the field of real estate and the areas that he is Florida Supreme Court certified.
Mediation is a collaborative process in which a neutral third party, called a mediator, facilitates discussion between two or more parties, in an attempt to help them reach agreement. Dr. Z does not decide how the matter should be resolved; only the parties decide whether, and on what terms, their dispute should be resolved. Dr. Z uses a structured settlement conference, conducted in a confidential setting.
Arbitration is another form of alternative dispute resolution. In Arbitration, the parties agree to have a neutral third party, called an arbitrator, decide how their dispute should be resolved. Arbitrations can be held with one arbitrator or a panel of three or more arbitrators, whose consensus decides the outcome of the dispute. Arbitration can be either binding (in the sense that the parties agree to abide by the arbitrator's decision) or non-binding (in which case the parties may pursue other means of resolving their dispute, such as litigation before a judge and jury).
There are several differences between these two alternatives to judicial resolution of disputes, but the primary difference between them is: who decides the outcome of the dispute. In Mediation, the parties themselves, with the assistance and facilitation of the mediator, decide whether the dispute should be resolved and, if so, on what terms. In Arbitration, on the other hand, the parties agree to let someone else (either one arbitrator or a panel of arbitrators) decide the outcome of their dispute for them.
There are several similarities between these two alternative dispute resolution methods. First, they are both much less formal and less costly than judicial proceedings. Second, you need not have an attorney represent you, as you likely would in court. (Of course, it is often advisable to have an attorney either with you or available to you while you prepare for and participate in either Mediation or Arbitration. An attorney can help you put your best foot forward, knowing your rights and the relative strength of your case.)
When you go to mediation you can be the decision maker. Whatever you don’t agree on, a stranger (the judge) will be the decision maker. Mediation is nothing more than a contract on how you will live your life. Do you want a stranger to write that contract on how you will live your life?
You go to mediation to solve problems and that requires you to use your brain. Please be careful and do not let the right side of your brain take over. The emotional side of your brain helped you get into this situation. If you feel yourself getting emotional, take a short break. You want to focus on using your left side of your brain. Look at each issue for the logic. You don’t want a stranger writing that contract on how you will live your life?
Remember that mediation cannot change one issue that happened in the past. Please don’t let your emotions of the past block the future of your needs. Starting w/today mediation can change anything you want (NEED) about the future. ARE YOU READY TO CHANGE YOUR FUTURE ? 
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