FAQs

You have questions. I have answers.

Below are commonly asked questions regarding the Mediation process.If you have any questions that are not listed below, please feel free to send me an e-mail at benson@bensonmediation.com and I will promptly respond.

How do you define mediation?

Mediation is a process of principled negotiations. “Principled negotiation … is to decide issues on their merits rather than through a haggling process focused on what each side says it will and will not do. It suggests you look for mutual gains wherever possible, and that where your interests conflict, you should insist that the result be based on some fair standards independent of the will of either side. The method of principled negotiations is hard on the merits and soft on the people. It employs no tricks and no posturing. Principled negotiation shows you how to obtain what you are entitled to and still be decent. It enables you to be fair while protecting you against those who would take advantage of your fairness.” Getting to Yes by Roger Fisher and Bill Urey.

What is your core philosophy?

It is based on four concepts: impartiality, integrity, confidentiality and a commitment to the idea of self-determination.

Some people do not believe it is even possible for a mediator to be truly neutral. Often during the mediation a party turns to the mediator and asks: “What do you think I should do?” Some mediators will tell him what to do. I will not. Instead, I rely on my ability to engage people in a rigorous examination of their assumptions and conclusions in order to help them see whether logic and reason support their arguments. I do not have a point of view to sell anyone and that gives me the freedom to poke and probe everyone’s thinking until they begin to come up with reasons to negotiate.

I remind people that in the judicial system there are only winners and losers. The question they have to answer is whether they want to resolve their differences or have a judge or six strangers on a jury do it for them. Mediation is not, however, an invitation to manipulate the parties into doing what I think is best for them.

Some mediators have been described as “thrashers and bashers.” They make pronouncements like, “… You don’t have a very good case" or "that seems like a very generous offer.” The mediator is thus using his or her position to influence the parties to accept his/her opinion. I strongly believe that if you give people the opportunity to decide what is best for them, they will. The central challenge and the great reward for me as a mediator is helping people understand the nature of the dispute and then finding solutions that make sense to them.

How do you handle emotionally charged mediations?

I am not afraid to be in the presence of people who have strong feelings and need to express them. I have developed considerable skill at establishing ground rules and enforcing them so that the parties have a safe opportunity to have the difficult conversations that must take place in order for the negotiating process to have any chance of success.

How does mediation work?

Mediation is a process for resolving conflict. It requires that the parties to a dispute negotiate with each other with the express intention of attempting to reach a mutually acceptable solution. The solution is one based upon the parties’ own interests. The mediator is impartial and assists the parties in carefully analyzing the logic and reasoning that form the basis of the positions that have previously resulted in an impasse. Furthermore, it involves the mediator helping the parties develop solutions that represent the parties’ interests, not those of the mediator.

What is your experience as a mediator?

I have mediated a great many cases. They have covered virtually every area of the law and involved a rainbow of people with a kaleidoscope of personalities and negotiating styles. I have accumulated more than 25 years of insight and experience that enables me to discern the back stories that people bring to the negotiating table. In these back stories are often hidden the clues to creative solutions that help settle cases.

What are the qualities that make you a successful mediator?

I am patient. I am willing to give people the time they need to work through the emotions involved in the dispute and then develop a rational strategy that will help them resolve the conflict.

I am persistent. I try to make mediation an agreeable experience, but I do not patronize people. I can be very rigorous in my questioning. I go where my intellect takes me.

I am creative. People often assume that there is only one way to achieve a solution. It is a great challenge to help people think creatively when they are stuck.

I am compassionate, empathetic and willing to respect people and the choices they make.

What are the differences between the courtroom process
and mediation?

The courtroom is a dicey place. The higher the stakes, the greater the impetus to reach a negotiated settlement and avoid the uncertainty of the courtroom. In a courtroom, the adversarial process focuses on logic and reason in determining the facts and how to interpret them. Emotional issues are filtered out of the discussion. In real life, though, emotional issues color the way we perceive and make sense of facts. Sometimes an airing of emotions is critical before the parties can even begin to reason with each other. In mediation, I can help create a safe place for people to have the difficult emotional conversations that they have been unable or unwilling to have with each other.

How much will it cost?

My fee is $300.00 per hour with a three-hour minimum. I charge for actual travel expenses but I do not charge for travel time. In the event the mediation is cancelled 72 hours or less before the scheduled start time, I charge a cancellation fee of three (3) hours.

Is the process confidential?

Each party’s communications to me as a mediator are confidential. All communications within the context of the mediation are confidential. Confidentiality is designed to encourage openness and candor and is a cornerstone of the mediation process.

What if my case involves a specialized area of the law or technical issues?

Every mediator brings to the process his own background and experience. A familiarity with the vocabulary of the problem is sometimes helpful but rarely critical. Even a modest amount of preparation by a mediator is usually enough to assist the parties effectively.

Why is mediation usually more cost-effective than a trial?

There is no reason to reinvent the wheel in every case. Mediation allows the parties to control the process of resolving their dispute. It is remarkable that cases that have languished in the court system for years can be settled in a day when the parties sit down at the mediation table and talk. Early (pre-suit) mediation often leads to an out-of-court settlement of the dispute, resulting in a substantial savings to both parties. Even if the parties fail to reach a settlement at the mediation, the process itself is always helpful. The mediation can often provide answers to critical questions. A clearer understanding of the problem frequently leads to further negotiations and a settlement.