I have been blogging lately about mediation – but what is it exactly? Mediation is a type of Alternative Dispute Resolution (“ADR”) and is sharply different than arbitration. A mediator does not make the decision about the outcome of the case; instead, the parties (and their attorneys, if applicable) work toward a solution together. The mediator helps to facilitate this discussion.
As noted this previous post, what happens in mediation (usually) stays in mediation (please see previous post for exceptions). In other words, what is said in mediation cannot be discussed outside of the mediation process unless the parties give consent. When I conduct mediations, I ask the parties to prepare a brief summary of the issues in dispute and supply me a copy of the court pleadings. This, however, is not required and some mediators will not ask for this documentation. It helps me to more clearly understand the facts, legal issues, and positions/interests of each side.
Once the mediation commences, the mediator will typically ask each side to make a brief presentation about the case from their perspective. The mediator may then ask each party questions to: (1) gain valuable insight, (2) have the other party more clearly understand their position/viewpoint, and (3) explore areas of possible compromise to develop a solution that meets everyone’s interests. Some mediators, like myself, prefer to have private meetings with the parties separately (i.e., caucus) to help gleen important information. Information discussed during this private caucus will only be disclosed to the other party when that party gives the mediator permission to do so. For example, if you tell your mediator during a private caucus that you will settle the case for $50K but want to offer $75K, the mediator will only offer the $75K.
The goals of mediation are to: (1) reach a better understanding through dialogue and (2) make strides towards an amicable solution meeting the unique needs of both parties. Mediation can be a more cost-efficient, less formal and more meaningful alternative to litigation.
It’s also important to understand that mediators are neutral third-parties. Any conflicts of interest must be disclosed to the parties beforehand. A mediator should conduct mediation sessions in an impartial manner.
Mediation can be a valuable tool in a wide variety of cases. Usually the biggest roadblock to reaching a successful settlement is personal or emotional. Mediators can help flesh the true interests of the parties out to help reach a better understanding/agreement. Parties do not have to reach a settlement, however, and it is critical that any settlements reached are completely voluntary.