Mediation

What is Mediation?

Mediation is a method of conflict resolution, which uses a negotiation process between two or more parties to arrive at a mutually agreed-to, legally enforceable contract. The contract is not imposed upon them by the mediator.

How Does Mediation Differ From Arbitration?

Mediation derives from a win-win model of conflict resolution. The mediator's job is to help the parties resolve their conflict and facilitate a communication of ideas between them. The end result is a legally enforceable contract. In this sense mediation is more similar to settlement discussions than to arbitration or a court proceeding. In contrast, arbitration is much more akin to trial than it is to mediation. Just like at trial, the parties in arbitration "try" their case before one arbitrator or a panel of arbitrators. Rules of evidence and civil procedure apply in arbitration but not in mediation. The arbitrators have all decision-making power and, at the conclusion of the process, they find for one party and against the other party.

Does Mediation Apply Only to Legal Disputes?

No, mediation can be, and is, used to resolve conflicts between family members, business owners, and employers and employees. Often, these conflicts revolve around personal differences and miscommunications rather than legal issues. The negotiation model of mediation is ideal for resolving these and other nonlegal disputes.

Why is Mediation Cheaper and Faster Than Litigation?

Mediation usually proves less costly and time-consuming than litigation because the mediation process focuses on solutions immediately. The parties need not engage in lengthy discovery or court proceedings. Objections based on rules of evidence, such as "hearsay", "irrelevant", and "lack of foundation" do not apply to mediated discussions. In fact, allowing these objections frequently precludes parties from having a discussion about the very matters that mean the most to them. There is no appeal process in mediation either. For all of these reasons, mediation is much more direct and to the point, and consequently, less time-consuming and costly than litigation.

In mediation, there also are no attendant costs, such as filing fees, expert witness fees, and extensive photocopying and exhibit preparation costs. Furthermore, parties normally share mediation fees, reducing the costs incurred by each side. Conflicts that may take years in court can be resolved in days, and at a fraction of the cost, through mediation.

Is Mediation Confidential?

Yes. Mediation provides two layers of confidentiality. First, the process, by its nature, is deemed confidential. Second, the parties have the ability during the mediation to meet with the mediator separately. In these separate sessions, the parties are able to share information with the mediator that they might otherwise not want to share with each other. The mediator is obligated to keep this information private, unless the party expressly grants the mediator permission to share that information with the other party.

Who is Present During the Mediation?

One of the most wonderful benefits of mediation is its flexibility. Parties are free to have consultants, accountants, attorneys, or whomever they desire present during the mediation. Of course, all individuals must abide by the terms of confidentiality that govern the mediation process.

Who Determines the Outcome of a Mediation?

The parties determine their own solutions. Studies show that this is one of the reasons so many people find mediation more satisfying than any other method of conflict resolution. Through mediation, the parties are able to communicate directly with one another and to gain an understanding that they might not have obtained otherwise. They are empowered to arrive at their own solutions, rather than being subject to a decision imposed on them by the "Law", a judge, or a jury. After all, it is the parties who are the experts on the situation at hand, and it is they who are most qualified to decide what outcome is in their best interests.

What is the Mediator's Job?

The mediator's job is to be an expert facilitator, negotiator and listener. The mediator helps the parties overcome their communication impasse and uncover solutions that meet their underlying needs and concerns. In a sense, the mediator also acts as a translator, translating what each party says into terms that the other party hears without feeling attacked or judged. After all, we all know what it is like to speak to someone and have that person not "hear" what we mean. At the conclusion of the mediation, the mediator drafts the agreement for the parties.

What Happens if an Agreement is not Reached?

There is very little downside to mediation, even if an agreement is not reached. The process is voluntary, and if it is not progressing, that usually becomes clear early in the process. From that perspective, very little expense is incurred because the mediations that do not reach agreement generally terminate rather quickly. Sometimes parties worry that, if an agreement is not reached, they will have "played their hand." Keep in mind that one need not play his/her "hand" because parties in mediation always have the ability to call a private session. Also keep in mind that even in litigation parties are forced to "play their hand" under our rules of discovery and disclosure, which are more liberally construed today than ever.

When is the Best Time to Look into Mediation?

Mediation is appropriate at any stage of conflict! It is never too late!

Some parties use mediation proactively. For instance, if parties anticipate a problem arising in the near future, they may use mediation to facilitate a dialogue and agree ahead of time as to how that problem will be handled. Other parties insert mediation clauses into their agreement, providing for the mediation of future conflicts. One other method of providing for mediation on an ongoing basis is to hire a mediator on retainer for disagreements that may arise over the course of a designated period of time. Most often, parties contact a mediator when they recognize a conflict has arisen and is not going to go away. When this happens, it is never too late to propose mediation. There is very little to lose in doing so, and so much to gain. Repeatedly, parties surprise one another and, even in the midst of litigation, engage in mediation to a successful agreement.