What are the advantages of mediation?
First, mediation usually costs less than traditional litigation. Second, research and experience show that two parties, working with a trained mediator, can usually reach a more satisfactory solution that any a judge can impose. Parties can agree to unique solutions and unconventional arrangements which no judge could order. Third, when parties agree to a solution, they are usually more inclined to honor it and they feel better about it later. Fourth, mediation is private. If parties do not wish to air their dirty laundry, they can resolve all of their issues in private, off the public record. Secrets revealed in the course of mediation are confidential and cannot be used in subsequent litigation unless the parties agree otherwise.
What are the disadvantages of mediation?
We don’t believe there are any real disadvantages to mediation. That being said, not every matter can be mediated because the process requires two willing participants. But if you have two willing participants, any perceived “disadvantage” can be overcome by proper planning and process. Some people are afraid they might be taken advantage of in mediation. If you were to ever feel that was happening, you have the right to immediately withdraw from the process and pursue traditional recourses. If you still wanted to remain in mediation, either or both parties can retain independent counsel and continue to work with the mediator. This can be useful when the relationship dynamics include a lack of assertiveness or intimidation. If either party thought the other was being dishonest, the attorneys can agree to engage in traditional fact-finding methods and they may utilize neutral or independent experts to review the information gained. If the other party refuses to cooperate, you can always pursue traditional litigation, but the information and communications exchanged during the mediation are confidential unless the parties agreed otherwise in writing.
What is the advantage of mediating with an attorney?
In Tennessee, anybody can call themselves a mediator and charge for those services. Sometimes they are not properly trained and they can derail a matter which might otherwise have resolved. Sometimes they employ subtle strong-arm tactics to force a settlement which can result in an unfair but unassailable judgment since the mediation process is confidential. A mediator who is not an attorney cannot advise the parties about what is “fair or standard” since that would be the unlicensed practice of law.
Why are some attorneys opposed to mediation?
If an attorney who is familiar with all of the facts of your case advises against mediation, ask them “why?” The attorney might believe public disclosure of the facts is necessary, or they may have some other reason why mediation is not advised. If they are not familiar with all the facts in your case, their motivation may be based on the higher fees they can charge for traditional adversarial litigation.
What is the difference between traditional attorney representation and mediation by a neutral attorney?
Traditionally, an attorney owes an absolute duty to zealously defend and tirelessly advocate for their client. We have over experience in this traditional role and we excel at it. When appropriate, we perform this traditional service. A mediator’s duty is not to an individual, but to both parties’ goal of reaching an agreement while avoiding court. This prevents the mediator from serving as an advocate for either party. If both parties want to work with one neutral mediator, we can help you. If you want an advocate, we can help you. Our attorneys are experienced and comfortable serving in either role, but with rare exceptions, we cannot change between the roles once we have begun working with you.
How does mediation work?
Usually the parties meet together with the mediator after they have completed basic questionnaires which provide the mediator with the context and background for the mediation. Sometimes parties do not complete the questionnaire thus depriving the mediator of the basic information necessary to proceed. In that instance, the mediator has the option of rescheduling the mediation session to another date after the parties have completed their questionnaires. This time is counted against the package purchased, so it makes sense to complete the questionnaires before the first meeting.