John F. Kennedy once said, "Civility is not a sign of weakness... Let us never negotiate out of fear. But let us never fear to negotiate." Negotiation is a highly valued skill in business, and is perfected over years and years of practice. Though most of us negotiate every day in our personal relationships, it is difficult to muster up the courage to apply the natural skills we possess, when confronted with a dispute with our former or soon-to-be-former spouse. It's the heat of the moment, the high emotions, and the tension that causes us to blunder and stumble, lose our cool, get lost in the weeds of the argument. Your demeanor in the process can mean the difference between a successful or failed mediation.
People often confuse mediation with arbitration, leading to misplaced expectations, and oftentimes, disappointing outcomes. Both mediation and arbitration are forms of alternative dispute resolution methods, designed to resolve conflict between parties without the need for protracted and expensive litigation. In today's litigious, but economically strapped society, more and more litigants are choosing ADR to resolve their disputes. Interestingly, many family court judges even require that parties attempt mediation before they are even permitted to trial! Because of the personal emotions inherently involved in family law disputes, the success or failure of mediation in family law cases can rise or fall on the demeanor of the parties. Understanding the subtle differences between arbitration and mediation may enable you to modify your behavior and increase the probabilities that you will achieve a successful result.
By way of brief overview, arbitration is a form of alternative dispute resolution, whereby a neutral third party is formally appointed to review the facts and evidence of a case and render a final decision in favor of one of the parties. Arbitration is typically binding and non-appealable, and though more formal than mediation, certainly less formal than litigation. In contrast, mediation is a form of alternative dispute resolution, whereby a neutral third party acts as a facilitator between the parties to assist in a self-determined resolution, but who does not have the authority to act as a decision-maker. Mediation is typically non-binding, unless the parties reach an agreement and choose to be bound by the terms of that agreement. While there are many similarities between arbitration and mediation, including confidentiality, cost-effectiveness, and time-efficiencies, they are indeed quite different. The single-most striking difference is that in mediation, it is the parties themselves who are negotiating and who are ultimately determining the boundaries of the settlement. Therefore, the ability for the two parties to communicate in an effective way is critical to the success of the process.
Mediators are there to help guide us through the dispute, help us communicate with our opponent, and help us piece together and agree to a reasonable resolution. Because the manner in which we conduct ourselves during these hours or days of mediation sets the tone for the entire mediation process and is critical to its overall success, below are some dos and don'ts to consider:
• Do focus on the areas of agreement, setting the stage that you can be cooperative and agreeable and setting aside those items on which you need not focus;
• Do be careful to always address your opponent in a civil manner, even if that courtesy is not reciprocated;
• Do make it clear from the outset that you are interested in resolving the disputes and avoiding further litigation;
• Do articulate each dispute individually to be certain that both you and your opponent are addressing the same item;
• Do attempt to put yourself in your opponent's shoes and think about the dispute from his/her perspective;
• Do demonstrate your willingness to concede on certain topics of disagreement and move off of a prior stated position; and
• Do offer to give up something in return for something else.
• Don't resort to name-calling or insults under any circumstances;
• Don't intentionally say things that will incite your opponent;
• Don't interrupt your opponent when he/she is speaking, and ask when you may appropriately interject your comments into the conversation;
• Don't ignore your opponent's concerns about a particular item of dispute, and give him/her an opportunity to openly discuss these concerns;
• Don't make ultimatums or state absolute positions;
• Don't bring up "fault" or historical disputes; and
• Don't be afraid to make concessions. It is not a sign of weakness, and is expected in this process.