A central tenet of mediation is the neutrality of the process. Further, all parties in the dispute are considered equal – no participant in the process has more weight in the decision making process than the other.
Archive for the ‘Ethics’ Category
Georgia megachurch leader Bishop Eddie Long and the four young men that filed suit against him for sexual misconduct have successfully reached a settlement through mediation.
This means that a mediator cannot take a side or advise either party in the dispute. There is no judge, no arbitrator of right or wrong. The sole purpose of mediation is to allow those in dispute to create a resolution that works for them. (more…)
Most divorcing couples find that they are in a period of high conflict. Some have experienced constant arguments and fights for months or years; some are reacting to a sudden change of heart.
Regardless of the circumstances and presentation, conflict between divorcing partners exists and is often seemingly impossible to navigate. Most often impending divorce results in a traditional type of intervention: retaining attorneys and asking them to resolve the issues, however divorce mediation is a better option for the vast majority of couples and families. (more…)
Mediation is the most efficient method of conflict resolution for most any conflict. As long as those in dispute, whether individuals or organizations, are willing to participate, a neutral mediator can assist the parties in conflict quickly reach a binding resolution that meets everybody’s needs and wants as much as possible – and one with which everyone is in agreement.
Today a federal judge ruled that Attorney Kenneth Feinberg, the “mediator” handling the the claims against BP as a result of the Gulf Oi Spill, is not independent of BP and must stop presenting himself as such. In other words, the judge ruled that Feinberg is not acting as a mediator of claims, as initially stated when he assumed his role, but more of a claims adjuster – an agent of BP. (more…)
The 2010 Alaska Senator campaign has been news worthy for many reasons – today the GOP candidate Joe Miller filed a federal lawsuit to bar misspellings of Lisa Murkowski’s name from being counted as a valid write-in votes. According to the Alaska Dispatch, the original judge assigned the case, U.S. District Court Judge John Sedwick, has recused himself from the case, however, due to issues that could bias the judge’s neutrality or at the very least give him the appearance of bias.
A reasonable person with knowledge of the above facts would conclude that my impartiality might reasonably be questioned. I recuse. The Clerk of Court will please re-assign this case to another judge.
It is important to note that although the Judge gives a clear statement that he has a negative opinion of the plaintiff, Joe Miller, at no point does the Judge indicate that he would be biased or unfair towards him. However, as he has a negative opinion of Miller, he cannot effectively act as the judge in this case. At the very least, his prior relationship with the plaintiff gives the appearance of bias and gives either side a cause to challenge any ruling they do not like.
The appearance of bias is an important distinction that impacts mediators as well. Mediators, like judges, are charged with being neutral participants in the conflict resolution process. The neutrality of the mediator is paramount to the success of the mediation.
Even the appearance of bias can impact the mediation. A mediator can be neutral, but if either one of the disputants has reason to even perceive that the mediator is biased towards one of the participants or a particular outcome it can negatively impact the success of the mediation as well as the long-term effectiveness of the agreements reached.
Over the weekend, the adoptive parents of Grayson Vaughn drove the 3 year old to his new home: That of his biological father, Benjamin Wyrembek.
This story first hit the news earlier this month when an Ohio Supreme Court ruled that the adoptive Indiana family, the Vaughns, were to turn the child over to his biological father who had sole and permanent child custody. The Vaughns refused, but then agreed to participate in mediation with Benjamin Wyrembek.
Due to the confidential and private nature of mediation it is not known what was discussed or how willing either side was to participate in creating a win-win resolution. However the Vaughns are reporting that mediation was not successful.
Unfortunately, this child custody battle had been going on for all of Grayson’s 3 years of life. Mediation, if entered into willingly by both sides earlier in the dispute may have been a much different process – similar to other parenting and child custody cases. However, mediation does not appear to have been tried except as a last resort; three years into a highly contested legal battle that has already been completely litigated with final judgment rendered. As a result, the mediation dynamic is irrevocably altered and the emotional positions of either side are going to be extremely difficult to set aside so that the shared interests can be addressed.
In addition, at the end of the litigation process the case was thrust into the public eye. Did the news coverage impact the mediation process? As outsiders we can be so quick to form an opinion exalting some and villainizing others. The knowledge of supporters to a side or stance can negatively impact a person’s ability to participate in the creation of a positive resolution. We can never know what, if anything, would have been different about the outcome of mediation had it been engaged earlier in the process and/or without the news coverage of the child custody case.
What we can do is know that, based on previous cases, Grayson will be OK: he is not destined to be traumatized by this process. In addition, we can promote the use of mediation earlier in the process, before the conflict resolution process (litigation) polarizes the sides making a win-win solution virtually impossible.
- Mediation = Agreement
- Desired Outcomes in Mediation
- We Can’t Talk, How Can We Mediate?
- The Problem With Litigation
- Role Of Emotions In Conflict
- Parenting & Child Custody Mediation
Mediation, a type of alternative dispute resolution, is a method of resolving disputes in which individuals or groups in conflict meet with a neutral person (mediator) who assists them reach an agreement that resolves the dispute. The mediator remains neutral and does not judge, determine merit, or favor one side over the other.
It is a confidential voluntary process, where all agreements are reached by those most impacted by the conflict or dispute and the outcome. Mediated solutions are typically seen as “win-win” solutions to conflicts or disputes.
Some important aspects of mediation:
- Resolution is always voluntary. Those who participate generally choose to participate. And in most instances can be ended, by either party, at any time. More and more divorce or child custody cases (as well as other types of lawsuits) may be referred to mandatory mediation. Although mandatory, any agreements reached continue to be voluntary.
- The parties agree to the resolution of the dispute. No one comes out of mediation with an order to do something they have not agreed to.
- Mediated agreements are as legally binding as any contract. In addition, since the agreements are reached with the full cooperation and involvement of the parties, adherence is greater than judgments rendered through the litigation process.
- An effective mediator facilitates communication. Often those who come to mediation are absolutely unable to discuss the conflict calmly. The presence of a mediator (a neutral third party) tends to mitigate the communication difficulties, and an effective mediator actively guides the parties towards a cooperative solution.
- Mediation is cost effective. Mediation tends to be significantly less expensive than litigation. When people chose to resolve disputes through the more traditional means of each getting lawyers, the fees almost always are higher and the process significantly longer. What can take 6 to 10 hours of mediation can take ten times that amount in billable time for attorneys, which equals $10,000′s of in attorney fees.
- Confidentiality & Privacy
- Why Divorcing Couples Should Try To Mediate Their Divorce First
- Arbitration vs. Mediation
- An Alternative to Business Litigation
- So Just What Am I Entitled To?
- The Savings – Cost of Divorce
- How Long Does It Take To Mediate?
- CFR Divorce Mediation Services
- Who Wins? Mediated Solutions Are Win-Win
Of all personal injury type cases, medical malpractice cases can be the most expensive and time consuming to take to trial. The litigation process in medical malpractice matters call for extensive record review and the opinions and testimony of expensive medical experts. In an effort to bring a speedier and more cost-effective resolution to medical malpractice claims, Connecticut has passed a statute requiring that all medical malpractice cases be referred to a 120 day mediation period.
Under Connecticut’s program, the presiding judge in a medical malpractice matter would conduct the first mediation. If the case failed to be resolved at this initial session, the parties could then agree to continue the mediation process. The stated purpose for Connecticut’s programs is to achieve a prompt settlement or resolution of the civil action.
Connecticut’s push for mediation of medical malpractice claims is a concept that can be applied everywhere. The goal of mediation in general is to provide parties with a forum to move ahead with prompt and amicable settlement of their disputes; without incurring the deep expense traditional litigation tends to generate.
Instead of the protracted journey that a medical malpractice claim can be, complete with lengthy and expensive depositions of expert witnesses, and extensive document review, consider mediation up front. Bringing all the parties to the table, with the assistance of a neutral mediator, can result in a swift outcome. Once the parties become engaged in a discussion of the bare facts of their dispute, a solution often becomes clear. Reaching this point at the beginning of a dispute, rather than waiting until the drawn-out litigation process has begun, can result in the parties resolving the claim with a result everyone involved can feel positive about and with a substantial cost savings.