Mediation settles disputes, transforms communication

Question: What are the advantages of mediating conflict disputes, as compared with suing in court?

Answer: As someone who loved being competitive in the courtroom, I was slow to see advantages in mediating or even negotiating a resolution. But later in my career, after handling a lot of cases where my clients had to pay high lawyer fees and court costs, even for a winning case, I started to use mediation. As I studied more about the process, I learned that many, if not most disputes — even long and contentious personal beefs — can be settled through mediation, which is simply using an impartial, experienced and good communicator to help the disputants construct their own solutions.

The main benefit is that the people involved can negotiate on a variety of nonmonetary issues, as well as the money question and shape the solution to fit their interests. Other real benefits are the confidentiality, speed and savings as compared with the very expensive "roll of the dice" in court.

A good source for a basic webinar, now on disc, is the Better Business Bureau, which recently co-sponsored, with the Association for Conflict Resolution-Hawaii chapter, a series on alternative disputes resolution processes. BBB (628-3901) and ACR-Hi both have websites with helpful info.

Q: What disputes are best suited for mediation?

A: Any kind of conflict can be helped by conversation through a mediator, who helps focus the discussion on real interests, as honestly expressed by the persons involved, sometimes using lawyers to help with legal guidance and "reality checks" based on real world experience. "Settling the dispute" is only one kind of goal. Another is transforming the way people communicate/negotiate so they can solve the dispute later, when conditions change.

Q: Could you offer tips for businesses to keep a dispute from escalating into one that requires formal mediation or legal action?

A: I do not advise people to try and "mediate" themselves; inevitably, they confuse the roles of facilitator and "stakeholder." Inexperienced managers often try to solve interpersonal conflict in the workplace, when it would be much better to bring in a trusted professional to mediate. Training in mediation skills can help anyone, especially business managers, to prevent a conflict from escalating as well as to arrange for a formal mediation at the earliest stage.

There are lots of people who can do the job of an impartial mediator and we usually don’t even call them mediators, such as a minister, who knows a family in conflict over decision making involving an elder who can no longer live alone with safety and ease. The Mediation Center of the Pacific has over 200 trained professional mediators who volunteer their time to mediate all kinds of disputes for a reasonable fee.

If the owner of a business has a regular lawyer or a good friend who’s a lawyer, then ask her or him to make an introduction to an experienced mediator who can coach and advise about using these methods to help solve a dispute and arranging for a mediation, which will be suited well to the particular kind of problem involved in the dispute.

Q: Is there growth in the use of mediation and why?

A: Many more mediations are being ordered by judges in various courts, even over the objection of one of the parties. Judges know it saves time and expense for the parties and the court personnel, especially the judges. The courts are starved for resources, especially in the economic hard times of the past few years. Businesses are much more likely to have mandatory mediation or arbitration clauses in their contracts.

In my field of interest, family disputes involving elders, disputes are much more likely than in years past, in part because of demographics. There is a growing recognition among professionals and the public that mediation can help solve various problems, such as family "beefs" over elder care and management of the resources and assets of elders. In particular, family-owned businesses should use mediation to arrange for leadership transition from one generation to the next; and these matters are best dealt with before the founding generation reaches a point of diminished capacities to "solve problems" alone.

A good resource for arranging facilitation of family meetings of all types is the Mediation Center of the Pacific, which recently launched its "Kupuna Pono" initiative to address the challenges of families in conflict, especially about elder decision making involving elder care and related issues.

Interviewed by Allison Schaefers, Star-Advertiser. "Akamai Money" seeks out local experts to answer questions about business in Hawaii. If you have an issue you would like us to tackle, please email it to business@staradvertiser.com and put "Akamai Money" in the subject line.