Private mediation is a voluntary process. An independent, impartial person (or persons) assists individuals, groups or organizations who are having conflicts and disagreements to discuss and negotiate a resolution.

All parties must agree on the final solution to resolve a dispute through mediation. Therefore, it is different from arbitration in which a third party acts as a private judge to make a decision. It is also different from litigation (where lawyers for the parties argue in front of judge or jury who makes a decision).

TO INCREASE THE ODDS OF AN AGREEMENT. The people (difficult personalities and strong feelings) or the problem (complex issues or intractable positions) can make it difficult to reach a resolution. A mediator may improve the parties' communication to focus on the real issues in a productive, creative way. When there is disagreement and conflict, people get locked into positions and fight with each other in ways that are destructive, time-consuming and costly. All the energy spent on fighting leaves little for negotiating effectively and solving the problem. By meeting together and separately with the parties, a mediator can encourage them to explore their interests carefully and search for all possible options. Using a mediator increases the likelihood of a negotiated settlement by bringing the skills, creativity and influence of a trained, impartial third party to bear on the problem.

TO SAVE TIME AND MONEY. When you can't reach a negotiated settlement without assistance, you may consider filing a lawsuit to be your only alternative. The litigation process can be expensive and time-consuming. There are no guarantees of positive outcomes from going to court. By pursuing litigation, you risk allowing someone else (judge or jury) to impose a decision on you. Even after you file a lawsuit, we know that eighty to ninety percent of court cases settle before trial. Unfortunately, many of these settlements only occur after the parties expend significant amounts of money and time in the process. There are many risks of loss of time and money that can be avoided if you can directly negotiate a solution where you retain some control over the outcome. A lawsuit can take a year or more just to come to trial. Then either side can appeal. Also, you often must spend time meeting with your lawyer to discuss the status of the case, get ready for depositions, and answer written questions from the other side. The time you spend preoccupied with the details of litigation is your time that is unavailable to further your personal or organizational goals. Trying mediation before filing a lawsuit is like trying medication to treat a health problem before you have surgery. Litigation, like surgery, is a more extreme choice involving additional cost, time and risks. We often conclude agreements in mediation within 3-6 weeks by meeting once a week for 1-2 hours.

TO KEEP YOUR OPTIONS OPEN. If mediation doesn't work, you can still sue and go to court. Mediation is totally voluntary, and if it's not working, any party can end the process and move promptly into litigation.

TO REDUCE EMOTIONAL COSTS. Not only is litigation expensive and time consuming, but it can be very stressful. You may feel that an important part of your life is on hold while you are waiting for a trial date, wondering and worrying about the outcome. If the parties to the conflict are likely to have to deal with each other in the future, using an adversary process like litigation risks polarizing and embittering people. The emotional scars from fighting may never heal or they may take a while, but these scars can complicate all the parties' future dealings. They also can make it impossible to have a satisfactory relationship.

TO DEVELOP SATISFYING, LASTING AGREEMENTS. When the parties (who know their needs better than anyone else) work together, they can customize a negotiated resolution for their unique situation. Judges and juries don't have any special wisdom or insight that lets them understand the practical and psychological needs you have in your family, school, and business affairs. Also, they may be restricted by legal rules that prevent them from addressing all aspects of the conflict to develop a real solution. In mediation, there are no arbitrary rules that limit your ability to deal with the whole picture. Your agreement can cover both legal and non-legal issues and is often more creative, comprehensive, and "on-target" than an outcome reached through litigation.

TO KEEP CONTROL OVER YOUR LIFE. It is natural to resent decisions imposed on us by others with power (legal or not). The goal of mediation is to reach an agreement that everyone can live with after all parties have a direct role in negotiating the terms and a chance to "clear the air." When the parties participate in this way they tend to have not only a sense of legal obligation, but a psychological sense that it is "their agreement," as well. This sense encourages feelings of personal, moral obligation and acceptance of the costs as well as the benefits. It is often necessary for one or more of the parties to follow through in some significant way to fulfill the terms of an agreement or a court order. When people agree with some degree of willingness to an obligation, they are more likely to follow through in good faith.

TO PROTECT YOUR PRIVACY. Mediation is a private process. There is no lawsuit filed at the courthouse listed in the newspaper for friends, employers/employees, bankers, reporters, creditors or others to notice, wonder about, and discuss. If the dispute doesn't involve any child custody or divorce issues, no public record of any kind may be necessary.

I schedule an initial session with all the parties involved to answer any questions about the process, obtain everyone's willingness to mediate and sign an agreement covering the ground rules and the payment of fees and costs. Until this agreement is signed, we cannot discuss the conflict in detail. If everyone is ready to sign the mediation agreement, we begin to explore the issues at the initial session. Additional sessions are 1-2 hours each and are usually scheduled one week apart. Many conflicts can be resolved in 3-6 full sessions. Cases involving complex issues and cases with very angry, polarized parties often take longer. When I become familiar with your situation, I will give you my best estimate of the time that could be involved.

Generally, in sessions, the mediator will meet with all parties together. But, sometimes it can be helpful to meet separately with each party. It may be difficult for the mediator to get an open, honest assessment from one or more parties in front of others. Also, where the feelings and communications of the parties are particularly difficult and bitter, separate meetings allow the mediator to act as a buffer and keep the parties from escalating the conflict by focusing the back and forth communication on the issues to be resolved. It isn't always easy to keep the parties talking productively about the real issues.

The role of the mediator is to move the parties beyond personality clashes and historic grievances. Then communication can be improved so any future dealings may take place without repeating the difficulties of the past. By putting a stop to the fighting and petty quarreling, the mediator sets the stage for each person to look realistically at their interests and their negotiating positions. Taking some tension out of the parties' communication allows everyone to look at the areas of disagreement in more creative ways to seek previously unconsidered options.

Mediation works because it adds a new dimension to the negotiations. A skilled, experienced mediator can:

• increase communication and direct dialogue without jeopardy to the parties' basic bargaining positions or strategies;
  
• translate positions and proposals into understandable and straightforward language;
  
• move discussions into areas that have not been fully explored;
  
• simplify positions, attempting to identify what is important and what is expendable;
  
• contribute to each party's understanding of the other's view of the issues;
  
• improve the pace of the negotiations, slowing it down or speeding it up as appropriate;
  
• encourage constructive movement and conciliatory gestures;
  
• assist all parties to look realistically at the merits of their positions and assess the likely consequences of the alternatives to negotiated agreement;
  
• work to insure that no one becomes defensive or aggressive due to a misinterpretation or an unjustified emotional reaction; and
  
• make concrete suggestions that encourage reasonable, constructive, and creative proposals.

We incorporate the rules into the mediation agreement that the parties sign. They cover such basic areas as entering the process with an open attitude, privacy and agreement not to subpoena the mediator or his records, and full disclosure of relevant information. In addition, specific rules can be added by the parties depending on the nature of the dispute. A copy of my mediation agreement is enclosed.

At this time, there are no state licensed or certified mediators although many mediators come from a recognized professional background, such as law, psychology, or social work. You should ask mediators about their background and what specific training and experience they have that qualifies them to help you. As with most other professions, satisfied clients are the best evidence of competence. I encourage you to ask for client references.

The background of a competent, professional mediator should include:
• thorough knowledge of mediation, negotiation, and conflict resolution theory and practice; • a solid understanding of psychology and human relations;
• excellent communications ability;
• flexibility, patience and a sense of humor; and
• familiarity with the issues involved in the dispute (or the ability to get up to speed on the issues quickly because of relevant professional background and knowledge).

Mediation is an unregulated field. Some mediators have little in their background that qualifies them to skillfully intervene in disputes. I have enclosed a summary of my professional background for your review. I want to point out several things about my background and training that may distinguish me from others you consider:

• I have 25 years of experience spent mediating hundreds of disputes in a wide variety of situations.
  
  
• My interdisciplinary professional background in law, psychology, organizational development, and financial issues enables me to work effectively complex situations involving legal issues, business/financial problems, and human relations/personality conflicts.
  
  
• Many institutions have recognized my expertise in the field as a teacher, trainer, and author. I have trained more than 4000 lawyers, judges, teachers, and mental health professionals in mediation skills. I have authored a textbook, The Art of Mediation, used in the United States, Canada, and Israel.
  

Mediators' fees vary a great deal. I charge by the hour for my time. My rate is $175/hour plus NM
gross receipts tax. My time includes the time we meet together and separately in mediation sessions, phone conferences, preparation between mediation sessions, and preparation of documents. If the case involves out-of-town travel, there may be additional fees for travel time.

In addition to my fees, I charge for certain expenses, approved by you in advance: mileage @ 48 cents/mile; copying*; long distance phone charges*; and messenger/federal express charges*.
(* All of these expenses will be billed to you at my actual cost.)

In most cases, my clients pay at the end of each session. If some circumstances, I require a refundable deposit payable at the beginning of first session. If the case is finished before I have earned the amount of the deposit, I will issue a check for the unearned balance to the appropriate parties within five business days. If the mediation continues beyond the time covered by the deposit, we will discuss billing and payment arrangements.

For most disputes there are five major options. For each option, consider three types of costs, $$$,
time, and stress, using some rough time estimates.

Negotiate a resolution one-to-one with the other side(s). This is the fastest and least expensive approach. It can be difficult and stressful if the relationship and the communication between the parties is poor. I presume that you have already tried this and it didn't work.

Hire a mediator to help the parties directly negotiate a resolution. This is usually the next least expensive approach. If you spend 6 hours in mediation (say $1050 — 2 = $525/each) and each spend 3 hours with a lawyer ($200/hr x 3 = $600/each) for legal advice and review of any proposed agreement, the total cost could be about $1125/each. If the case is complicated or involves the preparation of court documents and filings or extensive contracts, the mediator fees and the legal fees could be substantially greater. It is usually clear after 2-3 mediation sessions if we are making progress on the issues. The stress level is moderated by the assistance of a skilled mediator but you must be able to take responsibility for speaking up on your own behalf and making decisions.

Hire lawyers and ask your lawyers to negotiate with each other to attempt to resolve the issue. Estimate 10 hours of time for the each lawyer to research the issues, discuss and advise the client, and negotiate and correspond with the other side ($200/hour x 10 = $2,000/each). Similar to mediation, this process can move quickly. The stress level may be lessened because you don't have to directly deal with the other side. It may be increased because you give up some control over the situation to the lawyers. This option compares favorably to mediation in time and money when both lawyers take a pragmatic, problem-solving approach to the dispute. What you should also consider is the risk of escalation, i.e. bringing advocates for each party to the negotiating table may increase the level of tension and conflict. Some lawyers are excellent problem-solvers ("deal-makers") who know how to defuse situations and negotiate skillfully for a constructive, workable, and fair agreement. Some tend to be aggressive "deal-breakers" who see their duty of undivided loyalty to the client as justification for posturing, and "hard-ball" tactics as they maneuver for their client's advantage. This approach often elicits defensive or hostile responses from the other side. These responses can escalate a dispute and result in increased time and expense.

Begin (or continue) litigation. It is easy for the cost of this option to reach $10,000 or more per party. In disputes with any kind of complexity, fees can skyrocket. There is also a real possibility that it can take 1-2 years to reach a resolution. The stress level can be very high as the issue drags on, the costs mount, and you realize how little control you have over the outcome.

Lump-it by walking away from the situation with whatever you can salvage. Although this takes little time, the $$$ costs and the stress of this decision may be significant.

To take advantage of the mediation process while minimizing the cost, you must be willing to treat this as a priority. Prepare carefully for each session. Promptly gather all of the information we discuss. Keep your agreements to check with other people or produce documents. If you need to check with your lawyer or tax advisor, follow up so you are ready to address the issue and make a decision. The more leg work and homework you do between sessions, the faster the process moves along.

In the U.S., we gain much of our historic knowledge about mediation comes from labor-management experience. Beginning 30 years ago people in business, community services, and the mental health and legal professions began to use mediation in many different settings. These developments accelerated tremendously in the 80's. Some of these uses of mediation include: divorce and child custody cases; environmental and development disputes; car dealer-customer complaints; construction claims; employee grievances; special education-public schools problems; neighborhood controversies; and complex business litigation. Two major international corporations, IBM and Fujitsu, recently used mediation to resolve a trademark/trade secret dispute involving hundreds of millions of dollars in claims. A few examples of mediation that I have personally conducted include: community problems such as growth/development conflicts, and siting of unpopular facilities; conflict between a producer and director involving property rights to a film production; threatened litigation among neighboring home owners in a planned subdivision regarding restrictive covenants and controversial improvements; divorce and post-divorce issues of custody, property division, tax liability, debts, alimony and child support; fights among boards of directors over policy and control of an organization; organizational and commercial problems including employer-employee disagreements, business owner-manager conflicts, staff problems, and partnership disputes; civil rights and discrimination complaints; construction problems, e.g. an architect and property owner disputing cost overruns and construction quality. family business issues including valuation, succession, and inheritance multi-party and complex disputes before and after litigation has begun.

Mediation does work, even in difficult and unlikely situations. But, it isn't a magic bullet. The mediator should be skilled. Still, the parties must be committed to work on the dispute and negotiate to get through the tough spots. When one or more of the parties is intent on causing physical, financial, or emotional harm to someone else, mediation is probably not appropriate. This is particularly true if there is recent history of physical violence and intimidation. If any of the parties have serious, ongoing dysfunctions such as alcoholism or drug addiction they may not have the level of responsibility required by the mediation process. If one party has significantly more power than the other it may be difficult to build a fair negotiating process. Yet, generally, any time the parties will be dealing with each other in the future, whether by choice or out of necessity, mediation should be seriously considered as a way to increase the possibility of cooperative and profitable future dealings. The importance of the future relationship may justify some risk, even when one or more of the factors just listed are present.

I encourage all my mediation clients to consult with a lawyer, as needed, before they decide to try mediation and throughout the process. This consultation is particularly critical before signing any legally binding agreement resulting from the mediation. As a mediator (and lawyer), I cannot ethically represent any of the parties, and I cannot provide legal advice. With the consent of the parties, I can prepare a complete settlement agreement including the understandings reached in mediation, subject to all parties taking it to their lawyers for review and advice. The role of the lawyer as advisor and counselor is very important. I consider the advice of a knowledgeable lawyer to be a form of insurance. It insures: that all the bases are covered; that you understand the implications of the agreement; and that you do not agree to terms that are fundamentally unfair to you given your legal rights and responsibilities. In most cases, their lawyers remain in the background while I work directly with the clients. They are available, as you need them, for consultation during the process and prior to making any final, binding commitment. Some cases require court papers that only your lawyer can prepare for you. For example, in a divorce, orders must be prepared for the judge to sign. In pending lawsuits, you may need orders approving the settlement agreement and dismissing the lawsuit. I do not prepare any court papers in connection with mediated agreements.

f your lawyer discourages you from trying mediation, make sure you understand his or her concerns and ask common-sense questions. Ask about his or her direct knowledge of the mediation process and how it has worked for clients in the past. Ask whether there are some safeguards that can be built in to the mediation process to address her concerns. Carefully consider the alternative to negotiated settlement. Particularly weigh the advantages and disadvantages of litigation. Ask for an estimate of the odds of success if you litigate including the possibility of an appeal by the losing party. Assess the length of time it will take to get the matter to trial and the estimated cost of litigating the matter through trial and any possible appeals. Remember that trying mediation does not prevent you from going to court if the mediation does not result in a satisfactory agreement. However, adversarial representation and the commencement of litigation may increase the level of polarization and bad feeling between the parties. This often leads to the use of aggressive and defensive tactics that make clear communication and constructive negotiation difficult or impossible. When the parties forego the opportunity for direct communication with a mediator, they often must rely on a communication chain for current information on the dispute. "I'll tell my lawyer, who will tell your lawyer, who will tell you, and then you will respond by telling your lawyer, who will tell my lawyer, who will then tell me." It is easy for communication to be misunderstood or fouled up in this process, handicapping the parties' ability to search for a resolution.

The mediation agreement has specific contractual provisions that prevent all parties from using information developed during the mediation to prove that someone admitted something, agreed to possible settlement terms, or made an offer to settle. We do not have any court cases or laws in New Mexico that specifically address the privacy of mediation. However, courts in many different states have consistently upheld these kinds of provisions and forbidden a party from using mediation information to gain unfair advantage over another party. Judges want parties to negotiate settlements instead of clogging the trial dockets of their courts. Therefore, they have been very clear in their support of settlement processes (like mediation) and the rules that prevent one side from taking advantage of the honesty of another during negotiation and settlement. Remember that trying mediation does not prevent you from going to court if the mediation does not result in a satisfactory agreement. However, adversarial representation and the commencement of litigation may increase the level of polarization and bad feeling between the parties. This often leads to the use of aggressive and defensive tactics that make clear communication and constructive negotiation difficult or impossible. When the parties forego the opportunity for direct communication with a mediator, they often must rely on a communication chain for current information on the dispute. "I'll tell my lawyer, who will tell your lawyer, who will tell you, and then you will respond by telling your lawyer, who will tell my lawyer, who will then tell me." It is easy for communication to be misunderstood or fouled up in this process, handicapping the parties' ability to search for a resolution.