What are my other options?
Conflict Resolution Spectrum
What is mediation?
A story:
Two boys were arguing over a single orange. A teacher came over to address the disagreement. What did she do?
She cut the orange in half. Both boys were unhappy.
Pause for a moment and think- what would you have done?
One boy went home, peeled his half of the orange, threw away the peel and ate the inside.
The other boy went home, peeled his half of the orange, threw away the inside and used the peel in a recipe even though half a peel wasn’t quite enough.
If they had talked about why they each wanted the orange, one could have eaten the whole orange, and the other could have used the whole peel. If they had had a different conversation, there could have been a better outcome, for both of them.
All too often we assume we are dealing with a “fixed pie” scenario in a conflict- in which, for one person to gain, the other must lose. We might think splitting the difference, giving in, or advocating for the whole thing are our only options. Settling on one of these options, however, can leave other win-win scenarios uncovered, and this is a disservice to everyone.
People come up with positions (“I need the orange”) as a strategy to meet their needs (a snack, or the recipe), but often there are other possible agreements that would meet those same needs, one of which might be workable for the other person.
Court processes often push people farther into their corners, advocating for their positions. Mediation is about having that different, more expanded conversation. A mediator is trained to help you get there.
Can people make peace knowing they just split the pie? Yes. Can they turn their case over to a judge and have things decided for them? Yes. Are these solutions likely to result their best possible agreement? Probably not.
All the time, I see people come up with solutions they didn’t think of before. They come up with the solution themselves, tailored to their needs, when they are able to have the right conversation.
Important points to know about mediation
The mediator is not a judge, arbitrator, or decision maker, and won’t impose an agreement. The parties retain the power to agree or not agree to proposals discussed in mediation.
Mediation helps parties make informed decisions about their dispute and have the most productive conversation they can to look for sustainable options for resolution. It will not pressure or force an agreement if the parties decide, after looking at all the options, that an agreement is not in their best interest. Sometimes a partial agreement will work for everyone when agreement on all the initial issues is not reached.
The mediator’s job is to provide a process that supports the parties in having a fair, honest, respectful conversation. It is not to advocate for any particular outcome, or for an agreement at all costs. Sometimes, after having the best conversation they can have, one or both parties come to realize that a mediated agreement is not in their best interest, or that a partial agreement (on some issues, but not others) makes sense. Parties are encouraged throughout the process to think about their BATNA (Best Alternative to a Negotiated Agreement) and to “reality test” proposed solutions to see if they are sustainable solutions. The mediator will walk you through these processes as well as the process of uncovering creative solutions.
Mediation is considered successful if it helps parties make informed decisions about how to move forward. Mediated agreements work so well long term because they focus on crafting a plan that best meets everyone’s needs, and therefore everyone is genuinely invested in keeping them going. A good mediator will help you explore all your options for coming to a sustainable agreement.
The mediator is not a lawyer and does not give legal advice. Parties are always encouraged to seek legal advice if it makes sense in their situation, so they can make informed decisions about proposed agreements. Lawyers are advocates that work for one party. Mediators have to remain neutral and work for both parties.
Mediation is neutral. The mediator will support both parties in the conversation.
Mediation is voluntary. While there are certain circumstances in which appearing to an initial mediation session is mandated by a court, further participation is voluntary and coming to an agreement is always voluntary. Generally, anyone is empowered to end the mediation process at any time.
The mediator is a mandatory reporter for child abuse, elder abuse, and any specific threats to harm oneself or others.
Mediation is not appropriate for every case. In situations with a history of domestic abuse, or where you feel the other party will not be honest or operate in good faith, or if your partner is likely to hide assets during a divorce, or in situations where mental health or capacity issues are involved, the mediation process may need to be modified, or it may not be the right process. Sometimes accommodations can be made to still proceed with mediation. Feel free to ask for a consult to discuss your specific situation and we can help you determine if mediation can help or point you in the right direction.
Why choose mediation?
Mediation is often quicker and less expensive than engaging in the court system. It also provides more certainty, as the participants retain control over the outcome. It is a self-empowering process. Rather than handing one's case over to the judge to decide, participants are empowered to reach their own creative solutions, solutions they all decide they can live with and follow through with. If participants can have the right conversation, they often begin to recognize potential solutions they didn't see before. Mediation is also gentler on the participants, and especially helpful in situations where it is important to preserve a working relationship.
Some of the main benefits of mediation:
More efficient - Save money, time, and hassle
Anything that can be resolved in mediation often saves money and time from dealing with the court system. Even if a small claims case is won, for example, the winning party must then attempt to collect the debt via other means, which can cost even more time and money. Participants are far more likely to pay willingly following agreements they crafted themselves. If someone doesn't hold up their end of the bargain, mediated agreements can then be taken to court by either party.
Self-empowering
The process of mediation can often help develop one's conflict resolution chops. Participants are often very happy with the process and what they were able to accomplish with each other in mediation. Solving one's own situation, rather than gambling on what a judge might do, keeps control in the hands of the participants. They often feel better about the other party by the end of the mediation, as well.
Supports all participants
Mediation supports all participants in accessing resources to have a well-informed conversation about the issues they are facing, and moving forward in the conversation as equals.
Confidential
Court records are public record. Mediation is confidential under Oregon law. Anything you share with the mediator remains confidential unless you ask for it to be shared. Mediation sessions are also confidential. However, if an agreement is reached at the end of mediation, it is available for both parties to use in court if needed, and written agreements are not confidential.
Allows for a broader range of solutions, ones that can meet everyone's needs
While courts can often only "make things right" by transferring property or money between parties, mediation supports capacity-building and self-empowerment to explore resolutions from a more creative space. Participants know their conflict best, and as long as they can have the right conversation, they are also the best-equipped to come up with an agreement that will be sustainable and meet everyone's needs.
High-quality, individualized service
Rather than appearing before a stranger in the court system who will decide your case in 30 minutes or less, you will have individualized service from your mediator and work as a team with the other party to resolve your concerns.