Mediation
Pactum Factum
Negotiation and Dispute Resolution
Pactum Factum
Mediation
We will speak plainly: litigation drags on for years and tends to prevent people from moving forward with their lives. It takes an enormous financial and emotional toll on individuals, and erodes morale and productivity in organizations. You may have already tried to work out a settlement on your own without a satisfying result. Working with a competent mediator is very different.
The world of mediation has officially (and probably irrevocably) moved online. Our many years of “brick and mortar” in-person mediations have relocated to the virtual mediation platform (via Zoom), and Pactum Factum Principal Lucia Kanter St. Amour is a mediate.com Certified Online Mediator. Research shows that trust in an experienced mediator is the same whether a mediation participant interacts with that mediator via video or face-to-face (i.e. physically in the same room). The good news is that Online Dispute Resolution (ODR) has been developing into its current state of sophistication since 1996, and is nothing new. With over 350 hours of specialized and up-to-date training with the world’s most recognized and respected dispute resolution leaders and programs, not to mention hundreds of mediated cases, we excel at what we do, whether in-person or online. For FAQ’s about Zoom room mediation and to view our mediation forms, see our Forms and FAQ’s pages.
What sets us apart from other mediation services is our specific research into neuroscience, emotion, Paul Ekman lie detection, and choice theory, which enables us to guide the process and help the parties in ways that are biologically and psychologically beneficial, while always ensuring the empowerment of the individuals along the way.
Why Mediation?
People in disputes who are considering using mediation as a way to resolve their differences often want to know what the process offers. While mediation can not guarantee specific results, mediation generally promotes:
Economical Decisions
Mediation is generally less expensive when contrasted to the expense of litigation or other forms of fighting.
Rapid Settlements
In an era when it may take as long as a year to get a court date, and multiple years if a case is appealed, the mediation alternative often provides a more timely way of resolving disputes. When parties want to get on with business or their lives, mediation may be desirable as a means of producing rapid results.
Mutually Satisfactory Outcomes
Parties are generally more satisfied with solutions that have been mutually agreed upon, as opposed to solutions that are imposed by a third party decision-maker.
High Rate of Compliance
Parties who have reached their own agreement in mediation are also generally more likely to follow through and comply with its terms than those whose resolution has been imposed by a third party decision-maker.
Comprehensive Customized Agreements
Mediated settlements are able to address both legal and extra-legal issues. Mediated agreements often cover procedural and psychological issues that are not necessarily susceptible to legal determination. The parties can tailor their settlement to their particular situation. In a court of law, only the legally “relevant” facts and legal theories will be considered in determining an outcome. You may not have the opportunity to tell your whole story or communicate what is important to you. In mediation, everything is relevant.
Greater Degree of Control and Predictability
Parties who negotiate their own settlements have more control over the outcome of their dispute. Gains and losses are more predictable in a mediated settlement than they would be if a case is arbitrated or adjudicated where judges and juries make decisions based upon limited time and limited information.
Personal Empowerment
People who negotiate their own settlements often feel more powerful than those who hand off their dispute to a third party court or arbitrator or fact-finder. Mediated negotiations can provide a forum for learning about and exercising personal power or influence.
Preservation of an Ongoing Relationship or Termination of a Relationship in a More Amicable Way
Many disputes occur in the context of relationships that will continue over future years. A mediated settlement that addresses all parties’ interests can often preserve a working relationship in ways that would not be possible in a win/lose decision-making procedure. Mediation can also make the termination of a relationship more amicable.
Confidentiality and Open Exchange of Information
The open and free exchange of information facilitates the parties’ abilities to negotiate with each other in confidence. Both parties are working with the same base of information, so the process of reaching a resolution that makes sense to both is more efficient.The open and free exchange of information is protected both by law and by the Confidentiality Agreement that the parties and the mediator sign at the outset of the mediation. This means that the mediator cannot be called as a witness at a later trial and neither party may divulge offers that were made through the course of the mediation.
Workable and Implementable Decisions
Parties who mediate their differences are able to attend to the fine details of implementation. Negotiated or mediated agreements can include specially tailored procedures for how the decisions will be carried out. This fact often enhances the likelihood that parties will actually comply with the terms of the settlement.
The Law is One of Many Standards and Options
Most parties want to be educated as to the law. Many mediators try to strike a balance between their prediction of what a court would do and other standards that parties might want to consider. The law is just one of many standards that a mediator can use to facilitate an outcome that all parties feel is fair, efficient, wise and durable. The law is more subjective than most people experience it, and lawyers often disagree about what the law is, as do judges. Ideally, the law is just one ingredient in a mix of things that are relevant in mediation, along with other criteria that parties deem important.
Agreements that are Better than Simple Compromises or Win/Lose Outcomes
Interest-based mediated negotiations can result in settlements that are more satisfactory to all parties than simple compromise decisions. Pactum Factum mediators are especially trained to identify agreements that turn on an easy but unprincipled compromise, or that may be the result of weary parties after eleven hours of negotiating.
Decisions that Hold Up Over Time
Mediated settlements are durable. They tend to hold up over time, and if a later dispute results, the parties are more likely to utilize a cooperative forum of problem-solving to resolve their differences than to pursue an adversarial approach.
The Mediator Is Impartial (But Not Neutral) Read on:
An experienced mediator doesn’t give advice to either party independently, and can’t act as a lawyer for either party. The mediator’s role is to help parties come up with an agreement that they can all live with; to do that, the mediator makes a point of looking at the issues from both sides, in addition to examining the issues from other perspectives.The mediator will, however, point out matters the parties should be aware of in what they are trying to accomplish.
A basic tenet of mediators is to be impartial. This is not the same as being neutral. What’s the difference? Impartiality means that mediators can give lots of information to the clients we work with, without giving direct advice to either side. Impartiality drives the process of negotiation forwards, always ensuring fairness and even handedness, for example that both the people get opportunity to speak or reflect on options under consideration as per the case – and without taking sides.
But we are not neutral. Neutrality implies a state of dispassion or disinterest in the people or the process. As mediators, we are highly interested and engaged at all steps of the process. An elite Bugatti racing car equipped with 1500 horsepower will perform none of that power with the engine in neutral. We are always in gear, actively involved in a number of tasks at any given moment – even if it appears as if we are doing “nothing” (side note: If parties reach a deal in mediation and think to themselves, “The mediator didn’t seem to really do anything,” that’s how Pactum Factum Principal Lucia Kanter St. Amour knows she did her job).
Office
447 Sutter St, Ste 405
San Francisco, CA 94108
Call Us
1 (925) 322-0545