Richard Morley Barron Mediation

Frequently Asked Questions

There are five main characteristics of mediation:

 Neutrality

I do not have any point of view to “sell.”  I do not have to determine who was right or wrong.  This total objectivity and independence enables me to view a dispute differently and more dispassionately than the parties, or even their legal counsel, do.  I am able to privately point out potential problems in a party’s position as well as pointing out its strengths to the other side.  As mediator, I am on the side of a fair and prompt resolution of the dispute on terms that make sense for all parties.  My only goal is a hand-shake and I know that this will not occur if any party does not believe that they have been heard and treated fairly.

Confidentiality

Negotiation often has not worked for the parties because they fear giving away a “secret”, making a damaging admission, or giving a “number” that may prove to be too high or too low.  But in mediation the disputants are able to discuss hidden strengths or weaknesses with me without fear of making a mistake or having them involuntarily disclosed to the other side.  They can also discuss facts or offers with the other side, knowing that none of it will be admissible in court if the mediation is unsuccessful.  Most persons strongly prefer working out their dispute in the privacy of the mediation session rather than in a public court room.

Candor 

Mediation is not a game.  It is a serious and difficult process of negotiation that requires mutual respect and honest and critical self-analysis.  It requires a profound examination of one’s motivations and fundamental interests.  Both the parties and the mediator need to ask hard questions of themselves and of each other.  Empirical studies of negotiation demonstrate that co-operative negotiators generally achieve more favorable outcomes than do competitive negotiators.  But facts that a party determines not to share with the other side, for whatever reason, can be shared with the mediator.  

Self-determination

Often parties, near the end of a long mediation, ask me what I think that they should do.  Although I often have an opinion, I decline to share it.  It has been my experience that the parties and their legal counsel know best what is fair, workable, and realistic.  I tell parties that I will help you solve your dispute but I will not solve it for you.

Informality

  Unlike the formal, stressful and intimidating atmosphere of court proceedings, mediation is more like discussing family problems around the kitchen table.  There is no dress code, no rules of evidence, no confusion about legal terms or procedures.  Parties are free, at any time, to ask questions, speak privately with their attorney, or simply take a break to think things out.  Basically, parties are able to deal directly with one another if they choose.  Mediations are held at a time convenient to all parties but can be adjourned if necessary.  Each side is guaranteed the full time necessary to present its position.  Because of the voluntary nature of mediation, agreements, once reached, are almost always complied with without difficulties.

Mediation is difficult to describe.  It is flexible and organic and each mediation is unique.  Basically, I create a neutral and comfortable private environment, help establish impartial procedural rules and guide the parties through a cognitive and affective analysis of the dispute.  I explore the real interests of the disputants, help the parties analyze their options and guide them towards a resolution that makes sense to all sides.  This is often a solution that could not have been obtained from a judge or jury.  A mediator is a bit like a coach and a referee combined.  He focuses the parties on satisfying their own needs rather than on trying to keep the other side from winning.

Mediation in court cases works by directing the disputants’ attention away from the litigation and towards the dispute itself.

I normally mediate both in a joint session with all parties participating and in “caucus” with each side privately.  I assist the parties and their counsel to better analyze their real needs, to better communicate these needs, to better listen to and understand the needs of the other side, and to more skillfully negotiate a settlement that is both realistic and fair.  I also assist each party to objectively evaluate their risk tolerance and the full cost of proceeding with litigation.  I remind parties that negotiation, even with the assistance of a skilled mediator, is difficult and time consuming and I urge them to not abandon the process the first time that the other side seems to be resisting.

If, and when, I determine that the parties can not, will not or should not resolve the dispute through mediation, I advise them that the mediation is over.

The judicial process will always decide your dispute but it will not always resolve your problem!  Litigation is formal, complex, time-consuming and expensive; mediation is none of these.  Litigation is under the control of someone else: mediation is entirely under the control of the disputants.  In litigation even if you manage to “win”, there may be a lengthy, expensive and disappointing appeal.  Time is money for most people and the costs of litigation go far beyond just attorney fees.  A typical mediation may cost less than the cost of one key deposition.  If you mediate, you always control what happens.

 It does take two (or more) to tango.  However, if you would like to mediate your dispute, I am willing, without charge, to contact the other party and attempt to obtain their consent to mediate the dispute.  I will attempt to persuade them that winning means something more than opposing one’s opponent.

No.  On the other hand, if you are in court and have an attorney representing you, I strongly recommend that they participate.  Even if you are not in litigation you may wish to consult with legal counsel prior to mediating your dispute.

This situation, unfortunately, is not rare.  Mediation is generally superior to litigation, in my experience, in really resolving underlying emotional issues.  The parties understand that they will get a full chance to be heard and to fully express their emotions; something that normally does not occur in court.

Mediation can work with highly emotional cases if the parties are willing to listen intently to the other side and to re-examine their position in light of what they learn from the mediation process.  It should be self-evident that a resolution crafted by the parties themselves is more likely to be preferable than one imposed by a court that may leave both sides unhappy.

A lawyer’s happy client is the world’s best referral source.

If you have other questions about mediation I would be pleased to hear from you.  I do not charge a fee until you decide to retain me.

 

"Good generals win battles.
 Great generals win without battles."

Sun Tzu