Mediation & Hiring Lawyers – Tonya MacBeth

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Are mediation & hiring a lawyer mutually exclusive? Is mediation even required?


Let's talk about mediation and lawyers. Are mediation and hiring a lawyer mutually exclusive? Is mediation even required here in Arizona?

Mediation is strongly encouraged, but it is not required. The decision to undertake alternative dispute resolution or participate in a settlement conference or go to mediation are all talking about the same process where people sit down with a mediator and try to find a common solution that moves the parties forward.

I strongly favor participation in mediation, particularly where there is any future relationship that needs to be somewhat amicable. That is a business relationship, shared social circles, co-parenting, because trial itself is divisive. You have to present strong divergent opinions at trial, or you should have settled at mediation.

But the mediation is not arbitration, where the mediator, in that case, the arbitrator, makes a decision. Mediation is where you work together to find a common solution. Now when I serve as a mediator, I'm applying skills and knowledge to try and find the right path for both parties to reach a solution that they can live with. Not a win, but an acceptable result. That's two completely different things because a win implies a loss, and a win-loss situation is not mediation.

But it's important when you're serving as a mediator to realize that there are goals that each party has that are different, and perhaps those goals can each be met in a way that allows them both to move forward in a satisfactory manner. One may value expediency, another may value a particular item in the household, one may value a particular way to celebrate a holiday with the children, and finding these give-and-take situations where you can create value for both parties is a successful mediation.

But remember, mediation is more than just whittling down each side until you meet in the middle. If that were true, all you would need to do would be to write two numbers down, add them together, and divide by two. That's not necessarily a mediation process. Now admittedly, you might do that for some items, but there is more at stake than dividing by two.

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