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How do I know that I need a mediator? by Peter L. Curry, June 06, 2016

June 06, 2016 12:58 PM | Anonymous

So you are dealing with some sort of conflict in your life. How do you know whether there should be a formal effort to resolve this conflict, and if so, what kind of formal effort? Would mediation be useful?

These steps will help you to figure out whether mediation might be the answer:

  1. Determine the nature of your conflict. A certain amount of conflict is inherent in all aspects of our lives: family, neighborhood, circle of friends, employment, and extracurricular activities. At lower levels, conflict is normal, and can actually be helpful by inspiring creativity, prompting problem solving skills, and making some mundane matters seem more interesting. But at some point conflict can become corrosive and unbearable, and can put your personal and business relationships at risk. The cost to you can be either emotional, economic or both, and can have an ongoing negative impact on your quality of life. If you are at this point, start thinking about some sort of conflict resolution.
  2. Take a mental inventory of possible approaches. If your problem is marginal, sometimes a “wait and see” approach may work. Some conflicts fade with time, whereas facing them head-on with the other party might keep them alive. Politely expressing your concerns and asking to talk about them might be a good place to start and could lead to a solution if the other party shares your desire to iron things out.But if your particular conflict is especially intense and/or of long duration and your communication history with the other party is not good, it may be time to think of a more formal conflict resolution; perhaps one that you and the other party could enter into voluntarily to more efficiently deal with the conflict. Put another way, is there some method, short of going to court, with all of the delay and expense involved, that could be used to solve or mitigate the conflict?
  3. Consider whether the other party is up for it. Mediation is really just a structured form of negotiation, and it requires that both parties recognize that a problem exists and share the goal of resolving the problem sooner than later, with less rather than more expense. Both parties have to be willing to talk, and to listen to the other party’s concerns, for mediation to have a chance to work. The mediator will not make any decisions; the parties themselves will have to craft a solution with guidance from the mediator.

    Each party has to accept the fact that neither party in a mediaiton is supposed to “win” or “lose,” and a successful mediation will produce a negotiated agreement that will be fair to both parties. If you think that these conditions might prevail in your case, you should consider proposing to the other party (or parties) involved in the conflict that mediation be tried as a way to solve all or at least part of the conflict.

What it comes down to is that mediation, on one hand, occupies a negotiation midpoint between informal discussion and, on the other hand, a formal adversary proceeding whereby the outcome is determined by an objective party (such as an arbitration or court proceeding.) Each remedy has a proper place, depending on the nature of the conflict, and you may proceed from one to the other in your quest to resolve your unique situation. The advantage of mediation is that you and the other party have a chance to custom-tailor your own solution to the problem. And if mediation doesn’t do the trick, the other remedies can still be pursued.

About the blogger:

Peter L. Curry is a retired attorney with extensive career experience in the investment management industry. He has mediated in Maine and Massachusetts in commercial and family matters. He has also served as an arbitrator for FINRA. Peter has a B. A. degree from Princeton and a J. D. degree from Columbia Law School, and served for 3 years in the US Marine Corps.       

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