MEDIATION & CONFLICT RESOLUTION
Understanding the Process
It’s important to us that our clients feel fully informed and confident when working with us. Browse through the information below, and if you have a question that isn’t included here, feel free to reach out to us today.
WHAT IS MEDIATION?
Mediation is a dispute resolution method in which parties in conflict participate in a negotiation about their dispute, facilitated by a neutral third party in the hopes of arriving at a mutually acceptable agreement. Mediation is always voluntary, private, and confidential. The mediator is always impartial - she has no bias toward any party and no interest in any outcome.
Broadly speaking, there are three "styles" of mediation. First, mediation may be evaluative. The evaluative mediator analyzes a case much the same way a judge would. She points out weaknesses in each party's arguments and gives her best assessment as to what a judge's or jury's verdict would be if the case went to trial. The evaluative mediator's focus is less on helping the parties recognize and satisfy their underlying interests and more on assessing the relative worth of each side's claims and legal rights. The evaluative mediator is generally viewed as a legal and/or subject matter expert who can essentially render a non-binding verdict.
The second style of mediation is facilitative. The facilitative mediator is focused on creating the structure to allow parties to determine their own priorities, to design their own solutions, and to take ownership of an agreement. In pure facilitative mediation, the mediator controls the process while the parties control the content. The mediator attempts to create a space conducive to productive dialogue and asks probing questions to provide a sense of mutual understanding and to allow the parties room to shift their paradigms to permit fruitful compromise. The facilitative mediator's goal is an expansive, win-win deal framework, if the parties feel it is in their interests.
The final mediation style is transformative. This style focuses on improving the relationship between the parties through empowerment of the self and recognition of the other. Finding a solution to the immediate conflict is a lower priority than understanding the nature and origin of the conflict and the dynamics that enabled its genesis and shifting toward a more constructive communication style.
As you may note, these styles are all very different. It is important when selecting a mediator to understand what you hope to gain from the process so that you choose a mediator who can help you optimize the variables that matter to you.
HOW DO I KNOW THAT AMANDA HINSON IS THE RIGHT MEDIATOR FOR ME?
This is an important question. Amanda practices a style of mediation that can best be described as a hybrid between evaluative and facilitative. As a graduate of Harvard Law School and a former litigator, she is a legal expert capable of analyzing the facts and the law in a controversy and providing her assessment of the relative merits of the claims of each party.
That said, Amanda finds that the evaluative style of mediation can be limiting. By approaching mediation legalistically and trying to identify winners and losers, the parties will lose the opportunity to "expand the pie," satisfy their underlying interests, and move forward constructively.
Amanda's talents lie in helping two (or more) parties make durable deals they are happy with. She accomplishes this by shifting the paradigm and helping the parties come to terms with the fact that they are partners in building the bridge out of their dispute. Amanda strongly believes that most conflicts are an opportunity for mutual gain, and she helps her clients summon their own creativity and problem-solving skills to accomplish that, whether she is mediating a pro bono community conflict or a high-value commercial dispute. Her legal background enables her to inject a dose of reality if a party is digging in to a legally untenable position, but her goal is for the parties to work together to co-create a solution that satisfies all involved.
DO I NEED AN ACTIVE COURT CASE TO ENGAGE YOUR SERVICES?
Definitely not. Most mediation occurs after the initiation of legal action and after an initial failure to reach a settlement. In fact, though, bringing in a neutral facilitator before either party has filed a formal complaint may provide a friendlier environment in which to negotiate a mutually beneficial compromise - and it may save you the cost and hassle of hiring attorneys at all.
WHAT ARE THE FEES?
For commercial litigation and workplace dispute resolution, Amanda offers rates that are competitive with her colleagues in the DFW area. Rates are based on full-day or half-day engagement. All pre- and post-mediation administrative tasks are included in a fixed rate in order to provide the clients with the certainty of a known cost variable in contrast to the vast uncertainty associated with trial. Please inquire.
Amanda is also committed, however, to helping resolve disputes in organizations and communities that may not be able to afford her standard rates. If you are seeking to resolve a dispute peaceably but do not believe you can afford a mediator, please reach out to Amanda. If you work in a non-profit or political organization and would like assistance managing conflict either internally or externally, Amanda would be happy to discuss an alternative fee structure. Please contact us!
WHEN IS MEDIATION HELPFUL?
As a general rule, calling in a third-party neutral like a mediator is helpful when two parties who are interested in coming to an agreement feel like they have hit an impasse in their negotiations. The following should drive your favorable consideration of mediation, in particular as an alternative to continued litigation:
Privacy. Everything that occurs during mediation is kept confidential and may not be disclosed in subsequent litigation (with some rare exceptions). Mediation provides a risk-free forum to creatively brainstorm compromise solutions with your opposing party. Additionally, judicial proceedings are, for the most part, public record. If your dispute concerns sensitive topics or you are seeking to avoid publicity around your dispute, mediation is an excellent channel for resolution.
Control. Litigation is inherently messy. Judges set their own dockets and schedules, which means you have no idea when your matter will actually go to trial. Moreover, the resolution of your case will depend on the coordination of a number of people - attorneys, witnesses, experts, the judge, jurors, etc. - whose behavior is somewhat or entirely out of your control. Regardless of the merits, no case is a slam dunk. As the old saying goes, "A bird in the hand is worth two in the bush." Negotiating a settlement you can be happy with leaves you in control of the process and the outcome.
Cost. Trials are expensive: court fees, attorney fees, expert witness fees, data management fees, time lost to hours of depositions for countless employees...the list goes on. One flat mediation fee could help you reach a more cost-efficient solution.
WHAT CASES OR CONFLICTS ARE NOT SUITABLE FOR MEDIATION?
In theory, all conflicts may be amenable to resolution through mediation. There are, however, several instances in which a mediated resolution or settlement may not represent the best decision for one or more parties. In particular, the following scenarios:
When public vindication of rights is an important outcome for one party. Because mediation is confidential and, when successful, results in a private agreement between the parties, it can never establish legal precedent or - unless agreed to - involve a public acceptance of responsibility. Therefore, when your case involves establishing an important issue of law or perhaps setting a public example for the future, you may reasonably decide that you are not interested in mediation.
Significant power imbalances and/or history of violence. If one party feels physically unsafe in the presence of the other or if, regardless of the skill of the facilitator, one party simply feels uncomfortable asserting his interests to the other by virtue of the nature of their relationship (familial, employment, etc.), then mediation may not be successful. That said, even in the presence of what appears initially to be a power imbalance, it may be worth exploring mediation with the right mediator. Amanda is happy to discuss whether your case seems like it is better suited for mediation or court.