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Selection of a Mediator |
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Credentials vs. Skills
Knowledge vs. Results
Expert In The Field vs. Expert At Dispute Resolution
Leader or Facilitator
Settlement Rate or Fair Settlements (win/win means someone lost)
Hammer or Jellyfish (issues surrounding subpoenas served on the mediator) |
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Call 818 707 8177 For A Free Consultation |
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or click here to email us |
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Credentials vs. Skills
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Vast numbers of practitioners have attempted to enter the field of mediation over the past several years. The litigious nature of American society combined with the ever crowding of court dockets has had the effect of creating a large gap of experienced professional advocates. Among the participants in the field, we now have: judges (retired as well as those still on the bench), attorneys many of whom have had less than successful law careers, counselors (normally therapists who have expanded their practice to include divorce mediation), and finally professional mediators/negotiators. Let’s touch briefly on each group.
Judges - experience on the bench DOES NOT necessarily translate to success in
mediation. The Harvard or Stanford law degree affixed to the wall of a large office, the 15, 20, or 25 years of supposed experience, the last 10 of which have been spent on the bench in municipal or superior courts; are all quite impressive. However, past experience has shown that the more education a mediator has, the lower the success rate he/she experiences in reaching mutually agreeable solutions to people’s problems. These individuals understand the law inside and out, but spend a great deal of time covering the minutia involved in a dispute. They are also not necessarily trained in solving problems but are, in actuality, more qualified at acting as referees between disputing parties. And while acting as peace-keepers may seem valuable, it does not get the problem solved. Many of these individuals have seen and heard it all. Thus lowering their overall ability to empathize with the parties in a dispute and thus causing the parties to wonder whether or not this individual even cares about their particular situation. With one or both parties perceiving a lack of caring from a mediator, it becomes VERY difficult to achieve settlement.
Lawyers - attorneys are attorneys. Attorneys were educated and have been paid to deal with the law. Asking an attorney to perform effectively as a mediator is no different than asking a police officer to perform as a district attorney. One enforces the law; the other interprets and applies the law. While having the potential to understand legal matters, good attorneys are usually too busy being good attorneys to be engaging in the totally separate field called mediation. As for bad attorneys . . . well, we probably don't need to address these individuals.
Therapists or Counselors - the therapist turned mediator. This individual obviously has little if any value in mediating the litigated case (civil disputes). However, where he/she has been actively involved in attempting to counsel married couples, this individual may prove to be the path of least resistance in mediating divorce situations - especially where the husband and wife are in general agreement regarding most issues.
Professional negotiators? No. In a position to possibly resolve issues between a divorcing couple?
Possibly. Again, we would ask, does this person know the outcome in terms of time and money if the parties cannot agree to a settlement? Does this person have the software programs (all mediators should) used by the courts to calculate alimony and child support? Is this person a problem solver?
If they could not solve the couple's problems during marriage, will they be effective at obtaining agreement now that separation is imminent? Finally, good therapists do not usually have the time to devote to a second full-time occupation.
The Mediator - the professional mediator/negotiator. The professional mediator/negotiator is someone trained in relationship, someone trained in problem solving, someone trained in recognizing puffing versus reality, and finally, someone trained in negotiation where all parties feel satisfied with the final outcome. Information about a case should be quickly assimilated by virtually any professional.
It is the ability to take that information and translate it into a workable and fair solution which requires
skillsets many practitioners in this industry are lacking - no matter what their
title. Lastly, selling the “fair” solution to a party who thinks they have been dramatically wronged takes even greater expertise and finesse. Are these the best people for every case? Usually.
A skilled, professional mediator can usually (in about 8 out of 10 litigated cases and 9 of 10 divorce situations) reach settlement in less than a day. |
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Knowledge vs. Results
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This is somewhat addressed in the first section. Knowledge is great. And it is essential that any person involved in mediation be intelligent. However, the ability to quickly arrive at fair solutions and sell those solutions to disputing parties is equally important.
As book knowledge increases, “relationship” appears to
decrease. The ability for disputing parties to trust and feel a mediator cares in an unbiased manner makes all the difference in having the parties reach mutually agreeable settlements.
The absence of relationship will cause attempts at mediation to fail far more frequently than a slight gap in knowledge.
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Expert In The Field vs. Expert In Dispute Resolution.
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Knowing the difference between one type of mechanical component and another is extremely important. Knowing the difference between an enforceable contract and an unenforceable is again, very important. Certain fields of endeavor, engineering for example, require such a high degree of specialization, that only a true expert in that field would be in a position to judge (address) the merits/value of certain cases. However, the majority of litigated cases involve issues of equity (for example: the builder said the job would cost $20,000 then presented a bill for $60,000. Or, the seller represented no defects but six months later it was learned that he/she had been told that a $45,000 retaining wall would have to be built to prevent his swimming pool from sliding down the hill.) These are a few examples of equity. A mediator makes a quick assessment of the situation, totals the approximate costs associated with litigating the case, arrives at a fair solution, and brings the parties into agreement. We have just made a very complex transition sound fairly simple. For a professional, it can work this smoothly. For the improperly trained or the detail oriented mediator, this situation may very well end up in court in 2 or 3 years with all monies being wasted on the process instead of on a settlement.
Experts solve problems TODAY, not 6 months from now.
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Leader or Facilitator
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Lead, follow, or get out of the way. Leaders lead. Leaders assist individuals who may not have access to the same information. The leader’s/mediator’s job is to provide enough information to people so as to enable disputing parties make intelligent decisions as to what will work best for their particular situations. Facilitators on the other hand, allow things to move at their own pace. Oftentimes this results in no settlement. At $400 or more, per hour, disputants and their representatives are looking for someone to LEAD. The parties need a person who will take charge and move things forward not someone who is just along for the ride. Does this mean a mediator’s job is to force whatever he/she can down disputing parties’ throats? ABSOLUTELY NOT. What it does mean is that, as a professional, the parties are looking to this professional for both information and guidance. A true leader provides this and permits parties to reach agreements. Mediators do NOT settle cases - the parties do.
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High Settlement Rate or Fair Settlements (win/win usually means someone
lost).
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As soon as we hear the term win/win, 2 questions come into play: 1) who lost and, 2) how much did they lose. High settlement rates 90/95 % usually mean that one party or the other was beaten into submission. Some mediators are so intent on obtaining a settlement, they will go to extensive lengths to achieve agreement even if it means that one party has agreed to terms that were patently unfair to him or her. While terminating costly and time consuming litigation is the underlying foundation of mediation, it should NEVER take precedence over treating parties fairly and ensuring that an agreement equitable to all parties has been reached.
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Hammer or Jellyfish (issues surrounding subpoenas served on the mediator).
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Much of what takes place inside the closed doors of mediation is NOT admissible in courts of law (see:
mediation rules) However, it is not unusual for some attorneys to convince their clients to attempt to back out of agreements or to attempt to drag a mediator into a lawsuit in efforts to either muddy a case or further complicate it. In these situations it is absolutely essential that your mediator be willing and able to fight such conduct. To fail to answer these processes in an aggressive manner, brings about a discrediting of the entire mediation process. You MUST know that your mediator is willing to go to the wall to uphold the laws as they pertain to the privacy rights surrounding litigating parties. We are 100% unwilling to cave in any manner, shape, or form in any situation involving the attempts to disrupt the mediation process. We have numerous protections in place to deal with these events and are willing and capable of aggressively combating any attempts by litigants and/or their representatives to circumvent the rules surrounding mediation.
The agreements utilized at the conclusion of our successful mediations are extremely difficult to break. And that’s the way you want and need them to be.
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Call 818 707 8177 For A Free Consultation |
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or click here to email us |
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