Mediation Can Be the Process of Choice in Family Conflicts

September 1, 2015
Written by Lynne C. Halem

Mediation has hit the mainstream.

Schools teach children to mediate their differences.  District courts offer free mediation to small claims disputants, and family courts often provide mediators for resolving custodial contests outside of the judicial forum.  Labor unions engage in mediation with management to tackle contractual issues.  And, of course, mediators and dignitaries of all sorts crisscross the world in attempts to settle international disputes.

Mediation is a process that is known worldwide.  Yet, despite world recognition, few would claim that mediation is the process of choice in the settlement of business and family disputes.  When businesses build in a dispute resolution process to their contractual agreements with consumers and/or employees, typically arbitration is selected.  After all, arbitration carries a finality that mediation does not, for arbitration is legally binding; the participants must adhere to the arbitrator’s terms. Alternatively, mediation is a voluntary process, one in which the participants enter into a contractual agreement under their own volition, and the agreement is not, in and of itself, binding.

Families, a more intimate and delicate grouping, would seem most likely to gravitate toward mediation  when confronted with personal or legal conflicts. Yet often, mediation does not stand out as the process of choice.  Be it lack of knowledge about the process, the perceived need to have an advocate represent an individual’s position, or that family members simply do not view personal issues as appropriate, mediation is not the first consideration for the majority of individuals engaged in family conflicts or legal settlements.

Why then choose a process that is not the solution of choice?  Or even more confounding, why choose a process that not only requires the willing participation of all individuals (or institutions), but also may or may not be binding?

The answer is quite simple.  Participants, be they individuals or nations or businesses, who voluntarily agree to take part in a “discussion,” have already indicated a willingness to be open to resolving the dispute.  This willingness is a positive and encouraging first step.  And, too, groups who have struggled to hammer out a settlement themselves, are far more committed to upholding those terms that they have worked hard to structure, than are those who must follow edicts that were superimposed on them.  Not to be overlooked is mediation’s unique feature of granting participants, whomever and whatever they may be, control over the decision-making.  Settlements are structured by the participants replete with terms devised by participants.  The end product is distinctly unique, it belongs purely and simply to the creators.

CONSIDER MEDIATION FOR SEEMINGLY “IRRESOLVABLE ISSUES”

FAMILY DISPUTES

• Estate Issues: Where settlement of estate issues involve subterfuge, misappropriation of funds, intractability, and other issues that, by their nature, may undermine future family relationships and even engender criminal complaints
• Caretaking of elders where family members do not have workable relationships and/or disagree on the options and quality of care
• Settlement of contested wills
• Structuring terms for future interaction, accountability, and dispute resolution

DIVORCES

• Where delicate issues and problems need to be discussed in a confidential forum or in any and all cases where the confidentiality of the process is seen as a protection for private family matters
• Where provisions for future adjustment and terms are desired in an effort to avoid returns to court
• Where special protections need to be built into the final settlement allowing for side agreements that, if public, would inflict harm
• Where inclusion of terms for future events are considered crucial to reaching settlement

FAMILY BUSINESS DISPUTES

• Where behavior of employer/employee involve serious allegations that may involve legal intervention
• Where disgruntled employee raises questions that management is willing to confront in a confidential setting
• Family business settings where:
• Expectations of performance are not being met
• Compensation is being disputed
• Continued operation of the business is in jeopardy

In summary, the kinds of disputes, both outside and inside the legal arena that are appropriate for mediation are too numerous to even consider listing.

The confidentiality of the mediation process lends itself to resolving issues that participants do not want to take public.  In addition, the mediation forum should always provide a safe and secure environment in which the mediator ensures that all participants have a voice in expressing their thoughts and feelings and in structuring a settlement.  It is the mediator’s job to facilitate constructive discussion and to help participants to engage in problem-solving.

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