What is mediation?
Mediation is a supervised settlement process designed to allow parties to resolve their dispute by mutual agreement. The mediator is an impartial party who explores the issues, identifies alternatives, and communicates offers and counter-offers between the parties. Although the facts and legal issues are discussed, no testimony is taken or evidence presented. The mediator has no power to decide who wins and who loses, to compel agreement or to dictate the outcome of the dispute. A settlement can only occur when all parties agree on the same terms to resolve the case. In mediation, the parties–rather than a judge or strangers such as a jury–decide the outcome of the case.
Why would I want mediation?
The mediation process achieves settlement in a large majority of cases. These resolutions usually occur well in advance of trial, resulting in large savings of time and money. In addition, parties in mediation may consider a wide range of alternative outcomes–much greater than would be available in a conventional trial or arbitration. Mediation is usually concluded within one day (though sometimes a very long day) or less, and therefore is much less stressful than participation in a trial. In addition, if the case is not settled, parties and their lawyers will almost always learn a lot about their opponent’s view of the case and objectives for its resolution, which frequently leads to settlements in the aftermath of the mediation. In addition, the terms of settlement can be kept confidential by agreement of the parties, which is not the case with the result of a trial in court.
Who participates in mediation?
Only the mediator, the parties to the case and their lawyers, and sometimes insurance claims representatives. Court rules require that each party in a case (both individuals and business entities such as corporations or limited liability companies) be present in person with authority to agree to a settlement at all times during the mediation. If a claim is covered by insurance, a representative of the insurance company must also attend with authority to settle. Normally no one else is present, unless the parties agree otherwise. No one from the court is present. The judge in the case is not present and is not furnished any information about what occurs or what is said, except for a simple report showing whether or not the case was settled or, in some cases, whether the mediation will be reconvened at a later time. With some limited exceptions, the proceedings and the statements of parties and lawyers are completely confidential and are not allowed to be disclosed to third persons who are not parties in the case, including the press.
How does mediation work?
The parties mutually agree on a date, time and location. Usually the mediation occurs in the mediator’s office. Normally mediation is not conducted in the courthouse. In most instances (although not always), the mediator will make some introductory remarks with everyone present, and sometimes will ask the attorneys to summarize each side of the case and to respond to questions. Parties may speak at the opening session at their discretion and subject to the advice of their lawyers. At some point early in the session, and then throughout the day as the mediation proceeds, the parties and their counsel will each meet in private with the mediator. These meetings are an important part of the process because the parties and their counsel have an opportunity to discuss the case and their requirements for settlement in confidence with the mediator. Expect the mediator to challenge your assumptions and perceptions about the case in these sessions and to conduct a similar examination of your opponent’s understanding of the case. Eventually the mediator will elicit a settlement offer from one side followed by a counter-offer from the other. This process may go back and forth many times until either an agreement is reached or the mediator concludes that no agreement is possible, which is called an impasse. If an agreement is reached, it will usually be written down and signed during the mediation session, although sometimes the lawyers (with the assistance of the mediator, if necessary) will have to prepare additional documents after the session to complete all aspects of the deal. After conclusion of the session, within a few days the mediator will submit a short report to the court indicating whether or not the case settled, but normally without additional detail.
What does mediation cost?
The mediator is a trained professional who has received specialized training in mediation and a certification from one or more courts. Normally he or she is a lawyer with extensive experience in civil litigation, including trials. The mediator will charge an hourly rate which is comparable to the lawyers in the case, and that rate will apply to all work done by the mediator on the case, including preparation, review of documents, the mediation session itself, the report to the court, and in some cases telephone and other work to conclude the settlement if it cannot be done during the mediation session. Standard expense items are also compensable. The bill for fees and expenses will be split between or among the parties in the case in equal shares, sometimes by party in multi-party cases, and sometimes by side (i.e., plaintiff(s)/defendants(s)). The fee division should be agreed upon in advance to avoid any misunderstandings. Because mediation is usually finished the same day, it is much less expensive to the parties than conducting a trial, and it avoids the expense of preparing for trial, which is frequently the most expensive and intensive part of a litigated case.
What happens after a case settles?
The written settlement agreement of the parties which is prepared at the end of a successful mediation will usually set forth time frames for compliance. This agreement is a contract which will be enforced by a court if either party does not perform its obligations. This rarely happens and is no more likely in the case of a mediated settlement than it would be if the case settled without mediation. Normally the settlement agreement will provide that the lawyers will prepare and file concluding documentation with the court to close the case.
What is the difference between mediation and arbitration?
Mediation is negotiation to settle a case. Arbitration is a confidential adjudication of the case--i.e., a trial--before a private decisionmaker (frequently but not always a lawyer) hired by the parties to decide the case after hearing testimony and considering evidence. Except for the absence of a judge and jury, arbitration looks much like a trial, but in most cases there is no right to appeal and very little opportunity to challenge the result. After hearing the evidence, the arbitrator(s) render an award that will be enforced against the losing party by a court. Arbitration requires a contract between the parties submitting the case to arbitration.