MEDIATION AND DISPUTE RESOLUTION--THE BASICS

by Leonard Holmes, Ph.D.

Mediation and arbitration are two types of "Alternative Dispute Resolution" (ADR). ADR is a growing field, partly because of the increase in litigation and the backlog of court cases in many localities. A mediator is a neutral third party whom you hire to help resolve a dispute. The mediator's role is to help people reach an agreement. Mediation differs from arbitration in that an arbitrator can usually impose a solution on the parties, while a mediator cannot.

Mediation is an informal process where two parties sit down with an independent third party. This third party, the mediator, acts as a facilitator to help the parties focus on the issues and create solutions which are acceptable to both sides. If the parties reach a solution, it will be a "win-win" solution. The mediator then reduces the agreement to writing and the parties take it to their attorneys for approval before they sign it.

Almost any dispute can be resolved by mediation if both parties desire a solution. There is a growing trend toward using mediation to reach an agreement on the terms of a divorce (child custody, visitation, and property distribution). This is usually much less expensive than an adversarial proceeding where two lawyers "fight it out" with the "meter running." Many courts have the option of referring a divorcing couple to mediation. Family mediators also work with families having parent-child disputes, adoption issues, marital conflicts, issues with elderly family members, recovered memory/false memory conflicts, and estate matters. Mediation is also used in personal injury lawsuits to help reach a settlement quickly without a trial.

Most professional mediators are either attorneys or mental health professionals. This is not a requirement, but both of these professions bring something to mediation. Attorneys bring their knowledge of the law, while mental health professionals bring their knowledge and experience in human behavior, emotions, and relationships. Some difficult mediations are conducted by a mediation team consisting of an attorney mediator and a therapist mediator.

Mediators do not practice law (in their role as mediators) and they do not provide counseling or therapy. Their role is simply to assist parties in reaching an agreement which meets their needs, and to record that agreement accurately. Divorce mediation is probably the largest area of mediation practice at this time. Mediators are available in most parts of the country, and a mediated divorce agreement is not only less expensive than a divorce battle, it is often much less destructive emotionally. Mediation is truly an idea who's time has come.

5/30/98

Dr. Holmes is a clinical psychologist with the Behavioral Medicine Institute in Newport News, Virginia and is Coordinator of the Behavioral Physiology Laboratory at the VA Medical Center in Hampton. He has an on-line practice of psychology.

 

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