WESTERN DISPUTE RESOLUTION SERVICES
GUNNISON & CRESTED BUTTE

 

 
ARTICLES

Western Dispute Resolution Services Offers Mediation
by Jan Badgley
Hometown Happenings, July 11-25, 2012
Nancy Essex and Alice Arnold of Western MediationNancy Essex and Mary Fisher have banded together to form Western Dispute Resolution Services, offering mediation as an alternative path to conflict resolution. Essex and Arnold are both practicing lawyers in the valley, and Fisher adds her experience as a management accountant and small business advisor. They are all trained mediators.

These three offer their services as a group of professionals who will help you resolve disputes outside of court, whether they arise in your personal life or in your business world.

"We feel that mediation is often a softer, gentler approach to resolve conflicts between two or more parties," Essex explained. "In the court system, a judge or jury resolves a dispute between parties, awarding money or other relief on the basis of state or federal law. Mediation is a very different process. In mediation, the mediator is not a decision maker, but rather a person who helps the parties in a dispute reach their own agreement about how to resolve their dispute." 

Mary FisherTo resolve conflict through meditation, both sides to the dispute have to agree to participate in the mediation and agree on the selection of the mediator. Then both parties meet with the mediator. They may begin in a joint session, in which each party presents his or her case, or they may simply prepare a written statement for the mediator prior to the mediation session. It is up to the mediator to decide which approach will be used. The mediator then uses his or her skills to assist the parties in their negotiations on a settlement. Among other things, the mediator helps the parties assess their goals and where they might end up if the mediation is unsuccessful and they have to seek a resolution in court.  The parties might conduct their discussions in a joint session or they might meet privately with the mediator. There might just be one mediation session or there could be several, if the parties need time to collect additional information or assess their options.

"Some of the benefits of mediation include the fact that he final settlement in mediation can include things the parties could not obtain in a court action," Essex continued. "For example, a dispute over nursing home care might be resolved through an agreement on how the care will change. In a court action alleging negligent care, the court will only award monetary damages. In other types of dispute, a settlement might include an apology by one party, which is not something a court can order." 

Also, it is much cheaper to resolve a dispute through mediation than through a lawsuit.

"In court, you will pay more than $100 in filing fees, and if you have an attorney, you will also pay thousands of dollars for his or her services," Essex pointed out. "You can enter into mediation without an attorney and will only have to pay your share of the mediator’s fee, an hourly rate which is usually less than the going rate for legal services in this area. The fee is usually split evenly between the parties."
Furthermore, it is faster to reach a settlement through mediation than to get a judgment in court. The mediation session can be held as soon as the parties and mediator are available. In court, it can take several months to get a judgment in small claims court. County and district court actions can take more than a year and involve extensive pretrial depositions, exchanges of documents, interrogatories and motion arguments.

"Mediation sessions are not governed by the rules of evidence," Essex went on. "This means that parties do not have to have extensive legal knowledge to make their case and are not bound by formal rules governing relevancy and admissibility. Under state law, statements made in a mediation session are not admissible in court. This means the parties can communicate freely in mediation without fearing that they will find their statements used against them in court. Also, the mediator cannot later testify in court as to the discussions in the mediation session. Most importantly, studies have shown that parties in a dispute are usually happier with a settlement they have worked out themselves than with a result forced on them by a court. Mediated settlements are particularly good for parties who will have to have some dealings with each other in the future. They can come out of a mediation with a comfortable relationship, whereas the court process often leaves them in a very hostile, adversarial relationship."

Essex has been involved in civil litigation for all of her over 30-year career as a lawyer.
"I went through training as a mediator because I believe mediation offers the benefits discussed above," she said. "My role as a mediator is very different from my role as an attorney representing a party in court. When I am the attorney for a party in court, I see my responsibility as using all legal tools to advocate for that party and to gain a 'win' for my client, no matter what the cost of that win to the other side. As a mediator, I do not represent either party, and in fact am barred from representing either party should the dispute not be resolved through mediation. My role is not to see either side win at the expense of the other and not even to express my own opinions about the merits of a case, but to help both sides find a way to a resolution that will provide some benefits for both."

Although her role as a mediator is very different from her role as a client’s attorney, her experience in civil litigation helps Essex in her efforts to mediate civil disputes.

"First, I have extensive experience in almost all areas of civil law and have appeared at all levels of the court system in Gunnison County," Essex detailed. "I have handled personal injury cases, both for the plaintiff and the defense. I have handled disputes over business contracts, employment disputes, real estate disputes, construction disputes, will disputes, and disputes involving homeowner’s associations. This background helps me understand the legal issues in cases. It also helps me talk to parties about what they can expect should the mediation fail and they have to seek a resolution in court."
For decades, the trial courts have been requiring parties to attempt mediation or some other form of alternative dispute resolution before their case is tried in court.

"Over the years, I have not only been a mediator, but I have also participated in many mediations as counsel for a party in a court action," she continued. "Through this experience, I have seen how parties approach mediation and can understand how parties feel when they are involved in a dispute. I have also seen mediation negotiations succeed and fail and have, through that experience, gained some insight into what has led to each result. Finally, I have worked with many mediators and have seen a variety of approaches, some better than others."

Essex attended a week-long training for mediators at CDR Associates in Boulder, a firm that was one of the first in the country promoting mediation is a form of alternative dispute resolution. 
"It should be noted that a party in a dispute can’t enter into a mediation session unless the party on the other side agrees," Essex concluded. "People in need of conflict resolution can call any member of our group even before such agreement is reached, and we will contact the party on the other side to see if that party will agree to participate in mediation."

Mary Fisher was once a high-energy analyst in the high tech industry in Silicon Valley, California.

"That job was not very conducive to raising healthy, happy children, so I left all of that behind to be a better mom," she explained. "I became a mediator because I am a mom who values relationships."

Fisher took a job as a church secretary, and before she knew it, she found herself becoming a mediating influence within the church, which led to her mediation between the school district and the teacher's association.

"I had a sincere desire to get all the parties to hear one another and to develop a collaborative approach to problem solving," Fisher offered. "Through the years, I have remained a mediator because I still value relationships and the contributions of all involved. That is not to say that my subsequent professional training as a mediator with Utah Dispute Resolution, my paralegal studies (contracts and legal writing), my business degree or my decades of experience in California, Utah and Colorado have provided me with a magic wand. As a skilled non-attorney mediator, I have been effective in helping people resolve human resource issues, financial matters, organizational processes, and a wide variety of disputes, once the people are ready to resolve the issues."

Fisher lists some of the many lessons she has learned from her experience in mediation.

"Conflict can develop within any organization," Fisher pointed out. "Left unattended, conflict will not just go away, but it can frequently fester and grow. Conflict can eventually destroy working relationships in any form of organization, such as a family, a church, a teacher’s association, a company, a sports team, or a community non-profit."

According to Fisher, a professional mediator does not leap into the middle of a dispute or decide the matter. Instead, the mediator should value all the people involved, listen to everyone and help the parties involved come up with their own solutions.

"The professional mediators of Western Dispute Resolution believe the Gunnison Valley is a wonderful place for not only local mediation and other forms of dispute resolution, but we also plan to develop Gunnison as a destination mediation site," Fisher added. "We can help people in conflict, who really might not like each other, but who must abide by long-term arrangements, such as co-parenting or homeowner agreements, learn to appreciate each other's contributions and decrease chronic levels of conflict. We offer intensive weekend packages that include lodging, outdoor adventures and cultural events."
Western Dispute Resolution can customize dispute resolution weekends that give people time away from the normal stressors of life and encourage issues-focused sessions, followed by world-class breaks before reconvening for the next steps to resolution.

"These customized sessions are ideal for people who want to be in ongoing relationships, such as work or family, yet need to work together to identify issues and develop improved processes," Fisher concluded. "Oftentimes, people 'hear' each other more effectively when they are away from normal routines, where they can focus on listening and can make significant strides toward dispute resolution. In the meantime, they might also have a fabulous time here in the Gunnison Valley."

Fisher's advice to anyone in conflict is to not wait to contact a mediator. "Let’s give peace a chance before it’s too late," she encouraged.

Alice Arnold has practiced family law for nearly 20 years, and she has found that mediation is a more practical and peaceful way to resolve family conflicts than going to court. Arnold also is a licensed psychotherapist and is working on completing her PhD in psychology, which will be a good complement to her work as a mediator.

"For couples who are willing to communicate with each other and who want to avoid protracted adversarial litigation, mediation provides a forum in which the needs of all the members of a family can be addressed and, hopefully, met," Arnold suggested. "Mediation allows for win-win solutions. It also provides a foundation for cooperative co-parenting."

Arnold knows of what she speaks about cooperative co-parenting.

"I know first-hand the value in settling a divorce and creating a parenting plan through the mediation process," she shared. "Avoiding the adversarial and expensive court process frees up emotional energy and money and allows for the creation of a functioning, cordial, respectful, and yes, even friendly, post-divorce relationship and co-parenting partnership."

As a mediator, Arnold works to assist divorcing couples or post-divorce co-parents to resolve disputes through communication and problem solving.

"There are many ways to reach solutions that are creative and functional, that let every one get on with living life rather than fighting," Arnold concluded.

 

HOME | OUR PROFESSIONALS | AN EXPLANATION OF MEDIATION | OTHER SERVICES | FEES
ARTICLES | CONTACT US

970-349-0828 or 970-642-3303
info@westernmediators.net