Choosing mediation to settle a dispute, as an alternative to litigating the matter, offers several potential benefits. In addition to offering a less adversarial method of resolving an issue, mediation is also generally a faster and more cost-effective option for family law decisions, contract matters, interpersonal disputes, HR claims and more. In addition, most mediations are also confidential, in contrast to many court proceedings, which are matters of public record.
While most people have seen court proceedings depicted countless times on television and in movies, mediations may be unfamiliar territory. There are some important differences between courtroom trials and mediation. Understanding those differences and knowing what to expect from the mediation process can provide peace of mind as you prepare to mediate a dispute.
The Role of the Mediator
Unlike a judge presiding over a trial, a mediator has no power to decide the issues being mediated or to compel the parties to agree on the matter’s disposition. Instead, the mediator is a neutral third party whose responsibilities include facilitating discussions and seeking to guide both parties toward resolution.
Although many mediators are licensed attorneys, they will not provide legal advice to either party in a mediation. If both sides request it, a mediator may make a recommendation based on the information provided up to that point but will not independently steer the parties toward any particular outcome.
Planning for Mediation
Before the mediation begins, consider the dispute as objectively as possible. Think about what is most important to you and be prepared to articulate those points and your reasoning.
It also helps to go into mediation prepared to listen to other people’s opinions and points of view. Consider that if a settlement is not reached during your mediation, you may face the headache, time and expense of litigation. Taking an honest look at the prospect of litigating your dispute, and your chances of success in court, can help inform your mediation experience.
Consider also whether you want your attorney present at the mediation. Some parties opt to have counsel there, while others choose to engage directly, without legal representation. If your dispute is business-related, be sure that all appropriate decision-makers will be present.
What Happens During Mediation Sessions
In some disputes, one half-day mediation session may be all that is necessary for the parties to come to an agreement. For more complex issues, several mediation sessions may be needed. In these cases, it may take weeks, months or longer for the parties to resolve the matter or determine that settlement is impossible.
At the start of the session, the mediator typically introduces him- or herself and the parties, sets an agenda and defines ground rules. Then, each party can present their side of the matter and their feelings about the problem being mediated.
Next, the mediator will facilitate discussions by asking questions, clarifying points and working to help both sides understand the other party’s position. The mediator may, through this process, try to help identify possible solutions without directing the parties toward any particular outcome.
The mediator may also divide the parties into separate caucuses, holding private, confidential meetings with each side. These separate meetings may help parties feel more open about sharing information. The mediator will carry questions and messages between the parties. Negotiations may be handled in this manner, with the mediator carrying offers/counterproposals from one room to the other, or in a group setting.
Understanding Outcomes
In successful mediations, both parties agree on terms to settle the dispute. When this happens, the parties have, in effect, agreed that settling the matter is a better alternative for everyone than pursuing litigation. The mediator will prepare a binding, confidential settlement agreement for the parties to sign.
Sometimes, the parties to a mediation proceeding are simply too far apart and are unable to agree on terms. In this scenario, the mediator can explain non-settlement options, including litigation.
Ultimately, mediation is about finding a solution to the dispute that works for all involved. Understanding the mediator’s role, how to plan for mediation and what to expect during your session(s) may improve your experience and help you reach an outcome with which you are comfortable.
Author bio:- Jillian Gregory is the founder, owner and CEO for Evolution Process Service, a company committed to delivering exceptional legal solutions through ethical process serving. She has 10 years of experience in the industry and is an expert in process serving.
Sources
https://www.markeylaw.com/what-to-expect-in-mediation/
https://www.pon.harvard.edu/daily/mediation/dispute-resolution-how-mediation-unfolds/
https://www.finra.org/arbitration-mediation/mediation-process
https://www.ca4.uscourts.gov/mediation/preparing-for-a-mediation
https://www.americanbar.org/groups/public_education/resources/law_related_education_network/how_courts_work/mediation_advantages/
https://www.commerce.gov/cr/reports-and-resources/eeo-mediation-guide/what-mediation
https://www.americanbar.org/groups/public_education/resources/law_related_education_network/how_courts_work/mediation_processes/