Some Things You Should Know About Mediation
As a legal professional dealing with a client's conflict you actually have a choice:
you can file an action in court, or you can introduce your client to mediation.
There can be a better way: A mediator can often help resolve a dispute less expensively and with less conflict, whether it's a divorce, a discrimination claim, or the parent of a special-education student seeking more services from a school.
Attorneys don't suggest mediation because if you DO choose mediation, the attorney looses your business. Mediators don't decide who's right; while judges and juries DO try to decide who is right. Mediators guide a discussion so the disputants can more wisely reach agreement and move on with their lives. Most mediators love their work, helping people beat their swords into plowshares.
Most legal professionals will tell you: If we can't solve a conflict, we tend to give up or hire a lawyer. However, there may be an alternative to a law suit by using mediation. Mediation offers a process by which two parties work towards an agreement with the aid of a neutral third party. Litigation, however, is a process in which the courts impose binding decisions on the disputing parties in a determinative process operating at the level of legal rights and obligations. These two processes sound completely different, but both are a form of dispute resolution. Litigation is conventionally used and conventionally accepted, but Mediation is slowly becoming more recognized as a successful tool in dispute resolution. Slowly these processes are becoming inter-dependent, as the Courts in some cases are now referring parties to Mediation. In saying this, there are distinct differences between the two processes. Mediation claims to resolve many of the problems associated with litigation, such as the high costs involved, the formality of the court system and the complexity of the court process. Mediation does not create binding agreements unless the parties consent to it, and the Mediator has no say in the outcome. Even though our court system and mediation have increasing connections, they still reflect different value assumptions and structural approaches towards dispute resolution.
Paralegals often serve as mediators in law firms. They have gone to a 30-to-40 hour training course in mediation to further themselves professionally in the workplace. Barriers to entry are low, so there are more mediators than there are mediation jobs for a paralegal; at least this is so initially.
Because a mediator can be a non-attorney, this is one area that paralegals may consider for further professional or pro bono vocation. A quick internet search turns up a plethora of informational resources; but sometimes the best way to get to the heart of the matter is to speak to someone who has already mastered the experience.
Mediation becomes an "additional duty" for paralegals since "full time" mediators do not earn a middle-class income for one to five years. And even to do that, a mediator must embrace marketing by establishing a niche -- disputes among postal workers, people of different races, parents and teens. To develop a reputation, you must schmooze with potential referral sources, write articles or give talks on mediation, perhaps write a blog and create a You Tube video to show on your blog. You will certainly find well-connected champions willing to recommend you -- list them in your blog! Ironically, success may be more likely in today's slow economy as people and businesses seek lower-cost alternatives to attorneys to solve their disputes. If you are the type of person who has a gift for establishing trust, generating creative solutions, calming angry disputants, and staying calm amid ambiguity and dissembling, and are willing and able to market yourself, adding mediation to your list of legal skills can be a win-win decision for both you and your clients. With these traits, you can move above and beyond your firm's salary, and become an independent business person.
Here is an example of a situation you may encounter as a mediator in an employment situation: The week before Thanksgiving, Susan had been downsized after 10 years with her company, and she is suing for wrongful termination. In the mediation, her emotions pour out. Not only is she angry that she was let go merely so the company could hire someone cheaper in India, but she has no relatives and has always spent Thanksgiving and Christmas with coworkers. This year, she will be alone. Everyone is moved by Susan's story, and the company offers her a more generous severance package and a permanent invitation to all company social events. Not thrilled but mollified, she agrees.
by: Karel Stan
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