The Essence of Mediation & The Most Commonly Asked Questions About It

As most of you would agree, an individual’s state of mind can cause adverse effect to his/her health - chaos in the mind = havoc to your well-being; particularly those issues pertaining to disputes in the family or relationships. Luckily, there are various tools available to improve matters, and mediation - the ever famous dispute clarification tool is one of them.

Through mediation, you can regain control of your life. The process allows you to be involved and being an active participant in the decision making process, and therefore direct involvement in the determination of your destiny.

I sat down for a chat with a well-respected lawyer/mediator from Vienna, Barbara Nanoff-Schediwy. Please click on the video icon to view our candid conversation on the subject. Also below, is a list of commonly asked questions and answers about mediation not covered in the video.

What is mediation?

When two parties are unable to settle a dispute, they will often use mediation in order to reach an agreement; once the parties have agreed to use mediation, a neutral third party known as a mediator works with the parties in dispute in order to reach an agreement. The mere desire to settle a dispute is not enough. A successful mediation is like a successful relationship, it requires commitment. If all parties and counsel commit to resolving the dispute, there will be a settlement. When all the ingredients are present, it works phenomenally well.

The most common shared reasons for engaging in dispute resolution mediation are:

  • It maximizes the chances (if there are any) of reaching an agreement
  • It keeps everyone’s costs to the minimum (instead of a court proceeding)
  • It prevents issues from escalating out of control.

What is a Mediator and What Does He/She Do?
A mediator is often an expert in the field in which the parties are claiming a dispute. He/she does not need to be a lawyer but could help both of you negotiate an equitable settlement. Therefore, who you choose to mediate can be critical to making mediation work. The mediator can help the parties to keep the negotiation focused and framed positively, and to consider their positions and interests more objectively and realistically. This calls for wide-ranging and exceptional skills on the mediator’s part, and the parties need to be able to trust the mediator. From the parties’ perspective, a faster and higher quality outcome can usually be expected from the engagement of a competent, suitable mediator in most situations.

What is a mediation hearing?

The selected mediator starts the process by conducting a mediation hearing. During the hearing, both parties may be brought together in order to work on an agreement or a mediator may use shuttle diplomacy. Shuttle diplomacy is a technique used by a mediator where he/ she goes back and forth between parties with proposals in order to reach an agreement. If an agreement is made, the parties will sign a settlement agreement.

Why are some people very reluctant to mediate?
The most likely reason is lack of familiarity, and a preference to stick with their comfort zone of doing things the way they have been done before. Overcoming these blockages require some persistence.

How do I get the other side to agree to use a mediator?
You could propose it in a way that avoids conveying a sense of weakness. This can be done by explaining why it makes sense for both of you to seek out the help of a mediator.

Must I mediate if the other side proposes it?
Not unless you have been ordered by a court to do , or unless you are under a contractual requirement to do so. Even then, in the event that the parties involved do not approach the mediation in good faith and with a genuine intent to make it successful, you can discontinue the mediation at any time. If you really think it is not getting anywhere you can ask for it to be terminated. The other side can do the same. So it is not obligatory to reach an outcome agreed by all parties, and you should not feel pressurized to compromise against your better judgment.

Is mediation costly?

Mediation is usually the least costly of the alternatives, often far less costly than going to court. In Austria, financial support is provided for mediation dealing with family matters to individuals of a certain income level. 

How successful is mediation?

It can be very successful; most research on the success ratio of mediation quote an approximately 85% chance of success. The reason for this is that when parties are in a situation where they all feel empowered to negotiate effectively, and achieve their needs they generally do not fail to do so. Mediation provides that empowerment. In some disputes emotional issues are a major, if not controlling component. Unless the emotional issues are addressed and explored during the joint session, the dispute may not settle.

Why Does Mediation Work?
You are for example in the midst of a divorce or a child custody battle. Constant fighting, arguing and blaming in a marriage or similarly committed relationship generally leads to more of the same while sorting out matters. Unfortunately, the consequences of continuing this behavior can be dramatic, including significant damage to your emotional well-being. Mediating a case before a lawsuit is filed enables the parties to present their case to a mutually selected neutral person before any money is spent on litigation. The cost of mediating a case is minimal compared to the costs incurred through the life of a lawsuit.

In the case of a loving couple who has major conflicts, mainly due to communication or cultural clash, they can attempt to create a solid foundation on which to build their relationship. It's the perfect tool for sweeping away false expectations and building honest, authentic communication.

When should I mediate?

Timing is everything. Generally, the earlier you start with the process, the better. If there is a dispute, tensions tend to escalate over time, making settlement harder to achieve. In complex family disputes mediation can be the forum for positive change, however, it needs a number of preconditions to be successful.

How confidential is mediation?
Everything which is discussed during the mediation and any documents prepared especially for the mediation cannot be used by any party outside of the mediation process, or in any portion of litigation or trial. The purpose of confidentiality is to provide a setting in which the parties and attorneys can discuss the facts and issues openly, without fear that what has been said may be used against them outside of the mediation. Except in extreme cases (such as criminal illegalities or specific requirements of law and legal process) information disclosed to mediators must be kept confidential by mediators and their Codes of Conduct bind them to that commitment. Anything you say in confidence will be kept in confidence unless or until you allow the mediator to disclose it.

What is a settlement agreement?
As a result of mediation the parties may decide to resolve their dispute. The terms of agreement are listed in a settlement agreement and the written agreement is signed by the parties in dispute. The mediator facilitates the agreement but does not sign the agreement.

What Are the Costs of Mediation?
According to experts in the field, mediation is the cheapest and lowest risk form of alternative dispute resolution.

How Much Time Should I Allow for the Mediation?
Mediation may take several hours, a day, or longer. In situations which are ongoing – for example the negotiation of a deal or where the purpose of the mediation is to repair relationships rather than settle a specific dispute, it may take longer. It also depends on the number of parties, the complexity of issues, and how well prepared the parties are. More importantly, the length of the mediation is dependent on how flexible the parties are, and how compelling their desire to resolve the dispute.

Kids benefit the most from mediation since they are the ones mostly affected from conflicts between their parents. As partners, you might decide to go separate way, however, you will remain parents forever.

For further info on the subject, or to seek the help of the lawyer/mediator Barbara Nanoff-Schediwy whose contact info is the following:
Tel: ++43 (0) 664 501 29 31

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