MEDIATION—PROBLEM SOLVING FOR ALL TYPES OF CONFLICT By Sandra K. Kuntz, Attorney/Mediator

Posted on: August 29th, 2013      

 

Conflict is a reality of our culture. No one can predict or avoid the inevitable challenges that accompany changes in our economy, business, communities, or neighborhoods.   No one plans to get divorced when that wink or a smile is brewing into a relationship or the wedding bells are ringing.  However as life throws us these challenges, we have choices in how we manage them.

Recognizing that conflict is inevitable, one can choose to focus on the conflict as a wedge to push people apart, or a goal to pull people together.  Mediation is a process for resolving conflict with a focus on mutually acceptable solutions.  In contrast, the adversarial approach of litigation focuses on victory and defeat.  Mediation allows the parties to maintain the control.  Parties maintain the control in decision making, cooperative problem solving, and work within a neutral setting allowing better communication.

A mediator can provide a perspective that an attorney cannot.  For strategic reasons, evidentiary reasons, or ethical reasons, the attorney must argue for their client.  The mediator is neutral and therefore can help both parties view issues from a neutral standpoint with a focus on resolving the dispute, rather than validating one party’s position and seeking to “win”. A mediator can minimize side arguments while concentrating everyone’s efforts towards a mutually satisfactory conclusion. A mediator can resolve the parties’ issues by communicating rather than fighting, working as a team, rather than engaging in battle.

The mediation process is goal oriented and focuses on available factual information and assumptions regarding the future, perspectives, and options available to all participants.  It clarifies relationships, promotes understanding of established objectives, and assigns specific responsibilities, tasks, and time schedules to define and review progress. The mediator helps establish the ground rules for the mediation sessions, maintains the participants focus, and encourages participation to be creative.  The mediator leads the mediation process, provides suggestions to move forward, finds and defines points of consensus, restates comments and ideas through active listening, and maintains the climate of the meeting.

Mediation takes time and commitment from all involved.  Since the parties control the results of mediation there is generally much greater satisfaction with the results obtained than is the case for litigation through court or administrative processes.  Mediation can be used for all types of conflict including divorce and family disputes, surface damages related to oil and gas development, pipeline easements, reclamation and aesthetic concerns, credit and loan financing issues, employment and human resource problems, and other points of disagreement. In mediation, everyone wins for the following reasons:

It’s less costly. In mediation the parties typically split the cost of the mediator, with the mutual focus on resolution.  In the alternative, lengthy divorce battles require both parties to pay extensive legal fees to two attorneys.  The process of fighting has led to the financial ruin of many families. Divorcing families already have enough financial strain. Encourage the parties to pay for their child’s college education instead.

Litigation is emotionally expensive as well. Custody trials usually require the children to be interviewed and observed by several experts. The children may even be required to appear at court. The animosity between parents can increase significantly while embroiled in an adversarial process, which can expose children to increased conflict, verbal attacks and tension, leading to stress, confusion and long-lasting damage. A mediator can help educate parties in a neutral manner and keep the focus on the children’s needs, while engaging parents in a more sensitive and less inflammatory process.

If no children are involved, there can still be significant expenses associated with the identification and valuation of property.  Appraisers, evaluators, accountants, economists, and adjusters may be required by one or both sides, with the parties paying the costs for these services.  Mediation can often offer solutions to avoid these costs.

Mediation services are available privately and through various State sponsored mediation programs.  The ND Family Mediation Program provides six-hours of mediation for families with cases involving custody or parenting time filed with the Courts.   The Department of Agriculture Mediation Service provides mediation involving agricultural producers, as well as issues surrounding oil and gas development, surface damages, pipeline and road easements, reclamation, dust control, loss of production, deer depredation concerns, and a growing number of other issues.

There is faster resolution.  With resources in Western North Dakota stretched beyond their capacity, the wait for legal services and access to the Courts are backlogged for months.  Parties set their own timeframe for resolving issues, without having to wait months for the next court date or for a time when two lawyers and the Court can coordinate their calendars. It is possible to resolve issues in a matter of hours instead of years.  One of the worst parts of any litigation is the anxiety brought about by living with unresolved, lingering issues for a prolonged period and by having to remain attached to a problem rather than working towards a solution.

There is greater confidentiality. Communications, documents and work notes made or used in mediation are privileged and confidential. Meetings are private and at the mediator’s office (or even held via Skype or conference call). Litigation in a Court requires the parties to argue their case in a public courtroom in front of a judge, officers and court employees as well as other litigants and attorneys. It is often very uncomfortable to have financial circumstances and family problems discussed in a room full of strangers, or in front of neighbors and other people in the parties’ community.

The parties control the discussion and the outcome. The parties choose the topics that they want to discuss and settle. The parties, not a judge or jury, have final say over the terms of their agreement. Important decisions about the parties’ property, business operations, and children are not left in the hands of strangers.  Because the parties design the outcome, they can fine tune the agreement specific to their circumstances and needs.  The parties make their own “informed” decisions.

There is greater creativity, flexibility, and more personal attention. The mediation process allows the parties to speak and be heard. The parties work directly with the mediator, who will elicit, explore and generate options, help the parties negotiate, refine ideas, encourage decision-making and strive to find final agreement. The Courts are backlogged and understaffed with too many cases. Judges often do not have the time or opportunity to get to know each party or family and by necessity, must speak to the lawyers more than the people actually going through the litigation.  Mediators are more able to work around the parties busy schedule, as opposed to a court, with its rigid operating hours and overflowing dockets. Mediation can even work when parties desire to mediate their disputes but cannot do so while in the same room, or the same state.  Mediation can be achieved online via Skype or another online service, or via conference call or speaker phone.

It builds common ground, communication skills, and provides for greater longevity and stability to agreements. In contrast to the adversarial nature of the traditional litigation system, mediation seeks to improve parties’ understanding of each other and their ability to communicate. In the context of divorcing or separating parents who will need to co-parent for years to come, emerging from a divorce with the ability to communicate effectively and with respect is especially important. In the context of energy development disputes, the issues and damages are complex and impacted by numerous variables.  Unique resolution options can be crafted through mediation and include a working business relationship to address the challenges that are to come not just those that have accrued in the present litigation.  Everyone who runs a farm, ranch, or other business operation knows today’s points of conflict are just another stepping stone in the road and the challenges that tomorrow will bring. Burning bridges is a poor business plan. A mediator can help moderate, settle disputes and clarify or modify the parties agreement as time goes by. The mediator already knows the parties agreement, is attuned to the parties’ business or families’ issues and dynamics.

Mediation may not be the final solution for every case.  However, even without an agreement reached through mediation, the parties often find the process helpful and rewarding.  Given the low cost and ease of access to mediation, it is a worthwhile option to explore in even the most deadlocked cases.

Leave a Reply