Anyone who has spent more than a few minutes with me knows that my passion is mediation. I developed the Third Ear Conflict Resolution process from mediation techniques, and I wrote my first book about it in 2014. Yet I often meet people who aren’t sure what mediation is, how it differs from arbitration, and when they can use it.
The #1 Tip I want you to have is: you can mediate a dispute before you have filed a lawsuit.
In fact, if you call my office to explore the possibilities of litigation, I will probably stop you from sharing any identifiable or substantive facts until after I’ve asked you whether you might want to mediate. I might ask you if you’d like to preserve the relationship you have with the other party or parties. We might vaguely discuss whether you want to close your business, cut someone out of it, or have a win-win outcome. I’ll then encourage you to watch my Introduction to Third Ear Conflict Resolution video on YouTube and call me back with some dates when you and the other party might want to mediate.
I’ll probably then send you to this blog post also, so you can feel more confident in your decision to mediate and to choose me as your mediator. I want you to be happy with your choice to use this process, which is why I want you to know:
- A mediator is not an arbitrator. Although we often serve as neutrals in both mediation and arbitration, our roles are very different in each. In mediation, the neutral will not be making the decision for you. He or she is not a referee. Instead, they will facilitate conversation between you and the other party, in an effort to reach a settlement agreement.
- If you reach an agreement, it is binding. It will not have the same effect as a judgment that you can quickly and easily enforce through a court clerk, but you will have an enforceable contract in the unlikely event the other party fails to take the action(s) agreed upon.
- The mediator will not be giving legal advice to you or the other party. A mediator must remain neutral and focus on the underlying interests each of you has in the dispute more than what anyone thinks might happen at trial. Thus, you might still want to discuss the underlying legal issues with an attorney, or even have an attorney attend the mediation with you.
- Some of the behaviors you see in court or on Court TV will not be allowed in mediation. Mediators work in a space of compassion, respect, and professionalism. Many of us are committed to proving that great results can come from clear communication. We aren’t convinced that anyone needs to be punished for a dispute to be resolved.
- Mediation is a transformative process. If you are willing to explore: a) your unmet expectations, b) whether you actually want what you expected, and c) how you might still get what you want, we can often customize a resolution that empowers everyone involved to take the next best actions toward what really matters to them.
- You will likely get more than you imagined possible, even if you don’t reach an agreement. Of course, our goal is to get you and the other party to an agreement that helps you rebuild your relationship, even if it changes. But sometimes we can’t. Yet you will still go on to the next phase (e.g., arbitration, litigation, withdrawal) with greater clarity and confidence.
Have a conflict you’d like to resolve? Tell me more
Nance L. Schick, Esq. is a New York City attorney and mediator who focuses on keeping people out of court and building their conflict resolution skills, especially in business and employment disputes. Her holistic, integrative approach to conflict resolution draws from her experience as a crime victim, human resources supervisor, minor league sports agent, plaintiff, and trial attorney. She is a 2001 graduate of the State University of New York Buffalo Law School trained in Alternative Dispute Resolution (ADR) by the Equal Employment Opportunity Commission (EEOC). She is also creator of the Third Ear Conflict Resolution process, author of DIY Conflict Resolution: Seven Choices and Five Actions of a Master, and an award-winning entrepreneur, who has been acknowledged by the U.S. Chamber of Commerce (2015 Blue Ribbon Small Business), Enterprising Women Magazine (Honorable Mention, 2014 Woman of the Year awards), and Urban Rebound NY/Count Me In (Finalist, 2013 Pitch Competition).