Maryland Bar Bulletin
Publications : Bar Bulletin : August 2012

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The best outcomes are possible when the parties consider what life would be like after a resolution.

During the first mediation conversation, mediators often share tips, the rules of the road, to help calm and guide the new client. The number of tips and the emphasis placed on each may vary from mediator to mediator, but here are some of the critical considerations and commitments that we ask of our mediation clients.

  • Enter into the mediation process in good faith and with the belief that a satisfactory resolution for the dispute is possible.
  • Understand that the best possible solution for the dispute lies within you and the other party.

    In mediation, the emphasis will be on identifying the respective interests of the affected parties. This can lead to a process of creative problem-solving that generally far exceeds the scope of traditional legal remedies. Remember that the law is based on one of two principles: serving the greater good or a very narrow and specific set of facts from a given situation. It is likely that what is just and fair for the community at large, may not satisfy your interests. And unless your fact pattern is closely aligned with that of precedent case law, your resolution might come from uncharted territory.

  • Be willing to engage in the mediation process in a spirit of compromise and negotiation.

    If you are entering mediation with a checklist of unyielding wants and needs then mediation will not work. Each person in a mediation discussion needs to listen and hear what the other person is saying and, likewise, has to be able to clearly communicate what it is that they hope the resolution will address.

    One of the beauties of mediation is that it can represent your last, best chance to reach resolution that you control. Being inflexible can result in the resolution being imposed upon you by a dis-interested third party such as a judge.

  • Provide full and accurate information during the mediation process so that both parties are able to make informed decisions.

    If you are participating in mediation because you think its relative informality and the lack of a judge will make it easier to hide information, you are wrong. In the Pledge to Mediate as well as any settlement agreement arising out of the process, you will be asked to sign your name indicating that have not withheld information, misrepresented information, etc. There are legal consequences if you are later found to have been anything but up front, complete, and honest.

  • Focus on the freedom of the “after” instead of being a victim of the “past”.

    If all you want out of mediation is to re-hash history, you won’t enjoy the experience very much. Instead, the best outcomes are possible when the parties consider what life would be like after a resolution, and how it can springboard them to a new place in mindset and in life.

Brenda B. Shapiro established the Law Offices of Brenda B. Shapiro, LLC in 1994, where she is managing partner and provides legal counsel on family law matters.

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Publications : Bar Bulletin : August 2012

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