Mediation is a voluntary process designed to assist the parties in reaching an agreement. The mediator acts as a neutral third party whose job is to help the parties identify the issues on which they disagree, define their interests, overcome difficult emotions or mistrust, assess their chances of success realistically, and explore possible settlement options. The mediator does not act as a judge or jury. He does not decide who is right or wrong, and cannot give legal advice. The entire process is confidential, with some statutory exceptions, which allows the parties to speak candidly to each other and to the mediator without fear of having their words used against them in court if they fail to reach an agreement. Parties may appear with their attorneys, or represent themselves.
While the parties may modify the mediation process to fit their needs, the typical mediation starts with contacts between each individual party and the mediator – either by telephone or in person. The purpose of these initial contacts is to introduce the mediator to each party and learn about the nature of the disagreement. The mediator will ask for any court filings and other relevant documents to assist him in preparing for the mediation. Prior to the commencement of the mediation, the mediator will require the parties to sign an Agreement to Mediate, which confirms the parties’ desire to enter into mediation, outlines the mediator’s role, and binds each party to treat the proceedings confidentially.
Typically, but not always, the parties will first meet together in a joint conference at a mutually agreed-upon location. The mediator will ask each side to discuss the case, one at a time, without interruption. Often, this will be the first time that the parties have really listened to one another. The mediator will help the parties identify the areas of disagreement as objectively as possible. After the joint conference, the mediator may separate the parties, usually in two separate rooms, and meet with them individually. In these separate “caucuses,” the mediator will probe the party’s assessment of the strengths and weaknesses of the case. He will help the party identify core interests and determine whether emotions are clouding sound judgment. The mediator often offers his candid and confidential assessment of the party’s view of the case. The mediator may ask each of the parties to propose some solutions, or propose some himself. The parties may meet in joint session again to explore these options, or the mediator may shuttle between the parties acting as a go-between. Sometimes, the parties will ask the mediator to dispense with the joint conference and begin the mediation with separate caucuses. This is especially appropriate where emotions are running high.
If the parties reach an agreement, it should be reduced to writing to avoid any misunderstandings. When the parties are represented by counsel, the attorneys will generally draft the agreement. Where counsel is not involved, the parties may draft the agreement themselves, or ask the mediator to write it – recognizing that in doing so the mediator is not acting as an attorney, but merely as a scribe recording the parties’ own words. The agreement itself is not confidential unless the parties make confidentiality part of the agreement.
It is also possible to conduct mediations by telephone and e-mail. This is most appropriate when the amount at issue does not justify travel to a central location, when busy schedules do not permit face-to-face meetings, or where emotions are not running high. McMurray Dispute Resolution, Inc. has successfully handled dozens of mediations in this manner.
The benefits of mediation are many:
Disputes can be addressed and resolved quickly. They are not stuck in the congested dockets of today’s courts. The typical mediation takes less than a day to resolve. However, complex cases, or cases involving many parties, may take longer.
In the vast majority of cases, mediation is less expensive than litigation. No discovery or depositions are required (although some discovery may have taken place in connection with the court case), and attorney and expert witness hours are usually much lower.
Given the collaborative nature of the mediation process, it is easier to maintain a good relationship with the other party, which is often an important business consideration.
Lost employee time is greatly reduced.
The parties control the outcome; it is not left to a judge or jury.