Mediation – not just for court disputes

When we typically think of mediation and hiring a mediator to resolve a problem, it is usually tied to a problem that has already found its way to court.  While mediation is a great (and often mandatory, i.e. court-ordered) step to attempt to resolve litigation, there is so much value in the process that can also be applied to daily life and disputes that are not in court.

Most would consider these disputes “pre-suit,” i.e. a suit could or will likely be filed, but the parties want to try to work it out first (or a law requires them to try to work it out first, like Florida’s HOA statute – 720.311).  But I am not only talking about disputes that are potential lawsuits.  There is a world of opportunity to use mediation in a broader sense, to disputes that would not traditionally be resolved in court.

Workplace

I have mediated employment disputes over alleged unpaid wages and unlawful termination.  But there are lots of other workplace disputes that you would hope the participants wouldn’t have to hire lawyers to resolve and wouldn’t normally end up in court.  While human resources professionals are trained to be neutral, there is often still a dash of skepticism on the employee’s part – after all, in a company large enough to have dedicated HR staff, everyone works for “the man.”  This is where a trained mediator can lend their skills and provide reassurance to everyone that they are looking toward peaceful resolution – not what’s in their own best interest.  A friendly, confidential mediation could be helpful in resolving many such disputes, including:

  • disputes amongst co-workers (personality differences, space-sharing, delegation of tasks);
  • disputes amongst supervisors (staffing, division of work, territorial);
  • employer/employee (job duties, promotions, career trajectory).

Family

A couple seated across a heated negotiating table is often our cultural snapshot of a divorce.  But mediation is not only helpful for those dividing assets and child custody.  Lots of other “family” disputes could be resolved early on, before loved ones become arch-enemies.  Some examples that come to mind are:

  • Delegation of family responsibilities, child-care;
  • Planning for the care of elders;
  • Division of assets after an inheritance (without a will).

Neighbors

Who really wants to have to “lawyer up” against someone they’re stuck living or working next to for the unforeseen future?  There often are no “winners” in these disputes, because everyone tends to end up miserable.  An experienced mediator may be able to help resolve the tension and focus the participants on creating a better living environment for all (not to mention saving headaches and money).  Mediation may be helpful in resolving disputes such as:

  • arguments regarding boundaries, landscaping, parking, or aesthetics;
  • arguments over noises, smells, or other disturbances;
  • division of responsibility for shared resources, i.e. fences, hedges, ponds, etc.

What I hope you take away from these examples is that mediation is a useful tool and is not limited to resolving legal problems.  Because it is confidential (with very few exceptions), there is often little to no risk in attempting to resolve the dispute early on, perhaps even before anyone has consulted a lawyer.  My primary goal as a mediator is to get the lives and businesses of the parties moving forward again, and not bogged down by a disagreement.  So much time, effort, and money can potentially be saved by efficiently resolving these disputes and moving on to other priorities.

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Nicole Giuliano is a Florida Supreme Court Certified (County & Circuit) mediator and would cherish the opportunity to help you resolve your dispute.  Click here to view our current rates and terms.

Why Mediate? and When?

When most people hear the word “mediation” they are immediately transported to a vague reference from pop culture – maybe you saw people slamming the table in a movie or making snarky remarks in a legal drama.  Quite often mediation is featured in the family law context – we all know that those decisions are ideally worked out amongst the family members – but mediation is an available and useful tool in ALL areas of the law (and life).

Almost any dispute can be mediated, and in most cases, SHOULD be mediated before the problem escalates.  In some agreements and circumstances, pre-suit mediation is actually mandatory.  For instance, the standard Florida contract for sale and purchase of real estate calls for pre-suit mediation by a certified mediator of any “unresolved controversies, claims and other matters in question … relating to this Contract, or its breach, enforcement, or interpretation.” See Section 16 of the Florida Realtor Association / Florida Bar standard contract.   This gives the parties the opportunity to sit down and attempt to resolve the problem before running into court.  Likewise, Florida’s HOA statute, Section 720.311, requires a demand for pre-suit mediation of any “[d]isputes between an association and a parcel owner regarding use of or changes to the parcel or the common areas and other covenant enforcement disputes, disputes regarding amendments to the association documents, disputes regarding meetings of the board and committees appointed by the board, membership meetings not including election meetings, and access to the official records of the association.”

But it’s not just the problems headed for court that can be mediated.  Even those disputes that probably wouldn’t otherwise end up in court (maybe Judge Judy) can be mediated cost-effectively.  Such examples include neighbor disputes, pet disputes, and even arguments amongst friends or colleagues that may jeopardize the relationship going forward.  It is simply an opportunity to sit down with a neutral who is trained in problem-solving techniques and approaches,  a chance to breathe new perspective into a frustrating situation.

The harsh reality of today’s economic and legal markets often means that a lot of money, time, and stress is going to be used up before any real results are delivered.  Why hold up business, tie up those resources, and wait for a stranger to decide the outcome when you can spend an afternoon (with snacks!) finding a solution?  Of course, there are the exceptions.  There are absolutely instances where litigation is necessary.  But even those cases will often mediate before trial.

In sum, I urge all of my fellow colleagues, clients, and friends to mediate often and mediate early, if possible.  You lose nothing in the process because it’s confidential (what happens at mediation, stays at mediation) and you gain the opportunity to move on with business and spend your resources in more meaningful ways.

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Nicole Giuliano is a Florida Supreme Court Certified (County & Circuit) mediator and would cherish the opportunity to help you resolve your dispute.  Click here to view our current rates and terms.