What is mediation?
- Mediation is a settlement process in which a neutral, third party mediator/facilitator meets with the parties to identify, discuss, negotiate and resolve all issues in a dispute to their mutual satisfaction.
- The goal of Mediation is for the parties to create a mutually acceptable, durable, livable agreement that addresses their most important needs and interests.
- In Mediation, the parties maintain control of the costs, timing, scheduling of meetings, agenda, options and final outcome.
- As a result, Mediation is generally a much faster and far less emotionally harmful and costly process than litigation or other processes—and parties find the results more satisfying.
- Mediation is voluntary and each party must agree to work in good faith to arrive at decisions that will be acceptable to both parties. Parties are the final decision makers.
- Parties may choose whether or not to retain attorneys. Parties may choose to have their attorneys attend the sessions or consult with them separately.
- Mediation has been used successfully in a variety of dispute settings such as manufacturing, construction, labor/employment, technology, government, faith-based, community, neighborhood, landlord-tenant, parent-teacher/school, hospital, nursing home, elder care, family, divorce/custody/support cases.
- Mediation offers at least a chance to maintain an ongoing business/organization/neighbor/family/or co-parenting relationship.
- Parties rarely are able to maintain a positive relationship after a court trial or adverse proceeding (cost of trial, hard feelings, winner/loser psychology). Hostilities can last a lifetime.
- A prompt and early mediation in the event of a dispute can allow a project, contract, or relationship to continue with less destruction than any other process.
What is the role of the mediator?
- The mediator is a neutral facilitator only– not a judge or arbitrator and does not take sides or make decisions for parties.
- The mediator encourages the parties to work together to identify issues, listen carefully to one another, and find common ground.
- The mediator provides a safe space for parties to discuss their most important needs and interests. Each party will have the opportunity to be fully heard.
- The mediator will employ a variety of communication, negotiation and behavioral techniques and subject matter expertise to help parties elicit the best options and craft creative solutions to their disputes so their highest priorities are met.
- At the mediator’s discretion or at a party’s request, the mediator will meet with the parties separately. This is called a caucus.
- Mediators can be selected for their knowledge and experience in the subject matter of the dispute.
- Just like there are attorneys, experts and businessmen who specialize in particular subjects, there are mediators who specialize in particular subjects.
- Specialization can mean more informed discussion about the issues, and possibly more satisfying solutions.
- There are arbitrators who are specialized in certain areas, but many are not law trained, and they cannot always appreciate the importance of legal arguments (e.g., statute of limitations, privity of contract, rules of contract construction).
How is mediation faster than other processes?
- Mediations can be scheduled on an expedited basis given the availability and preferences of the parties and mediator.
- Litigation can drag on months or years to get a case to the point where a resolution can be imposed by the court–even with statutory limitations. Often a side drags things out to outlast the other side or for “whatever they can manage to get.”
- Arbitration is usually somewhat quicker than litigation, but parties have no control over outcome and to enforce, you must file a court action.
- Rapid resolutions help avoid escalation of the conflict and degradation of an ongoing relationship.
What are the advantages of mediation?
- LESS COSTLY THAN OTHER PROCESSES. Parties share the costs of the mediator.
- Most mediators charge by the hour and generally can complete the process in 1-6 sessions depending on the number and nature of issues in dispute.
- The number of sessions will vary depending on the number and nature of the issues involved and disputes to be resolved, and the personalities of the parties involved.
- The length of the sessions depend on the preferences/availability of the parties and topics to be discussed.
- Attorneys may attend the mediation session, or may be consulted as needed to keep legal fees to a minimum.
- Mediation reduces the parties’ time away from work or family.
- How does mediation give parties more control over the process and results?
- In a mediation, the parties can set their own ground rules—what will be addressed; what will not be addressed; who will participate; whether it is binding or non-binding.
- Parties in mediation can say what is on their mind, regardless of the rules of evidence.
- The number of mediation sessions will vary depending on the number and nature of the issues involved and disputes to be resolved, and the personalities of the parties involved.
- The length of the mediation sessions depends on the preferences/availability of the parties and mediator and topics to be discussed.
- MORE PREDICTABLE. In mediation, parties can come to complete or partial agreement on disputed issues, or choose not to come to agreement. Parties are the final decision makers.
- Parties determine which topics and specific information will be included in their mediated agreement.
- Parties will understand the issues and craft more appropriate solutions than a typical judge or jury, or a non-specialized arbitrator.
- Litigation follows set rules, and how those rules are applied is up to the judge.
- Litigation is resolved by the judge and/or jury, and result is not in the parties’ control.
- Arbitration follows set rules, although they are sometimes more flexible and less formal.
- Arbitration is resolved by the arbitrator, and result is not in the parties’ control.
- MEDIATION IS PRIVATE—Parties can avoid disclosure of sensitive business information (employee records, salaries, business plans, trade secrets).
- Court filings are public, and judges are sometimes slow and/or reluctant to order that files be kept under seal.
- Even if court filings are under seal, it is rare for a court to absolutely prevent discovery into sensitive matters; may get an order limiting information’s use but it is still “out there.”
- Same problems with discovery can occur in an arbitration setting.
What happens if an agreement is not reached?
- The best source of discovery in a dispute is a frank negotiation, even if it fails.
- By the end of a day, most people participating in a mediation will give you a good idea about what they are really looking for.
- At least at the end of the day, you know what you’re up against.
- Even if no agreement is reached, a dialogue has started.
- Willingness to maintain an ongoing relationship (if possible) has been shown.
- In court sponsored mediations, in particular, word does sometimes get back to the third-party decision-maker about who is reasonable and who is not.
- Parties can choose to arbitrate or litigate any unresolved issues.