Mediation is a structured process designed to help parties resolve disputed civil matters. The "mediator" is a neutral person, trained and skilled at facilitating communications, negotiations, and dispute resolution.
In an arbitration proceeding, the neutral party (the arbitrator) acts as a judge in hearing evidence and rendering a decision. By contrast, a mediator does not hear evidence nor render a decision. A mediator works with all parties to find a solution that is acceptable to all parties. Mediation does not end in a "winner-take-all"/"loser-take-nothing" decision. Mediation ends when all parties find a solution all parties can live with--a mutually acceptable resolution.
Cost of Litigation: Mediation offers a high probability that the dispute can be resolved without extensive discovery, trial preparation, and the trial itself. The track record of mediation is that approximately 80% of cases are settled where trained attorney-mediators are involved. Moreover, studies show that 90% of persons utilizing mediation are satisfied with the results, while only 15% of parties trying a case to conclusion are satisfied with the results. Frankly, mediation costs are a mere fraction of the cost of taking a case all the way through a trial and, in some cases, an appeal. These cost savings can be measured in terms of money, time, and emotional investment in the case.
Speed: A mediation session can bring settlement negotiations "to a head" much quicker than if the case proceeds to trial. Mediation is appropriate at any time after all sides have obtained enough information for them to be able to feel comfortable settling the case. In most instances, parties want to resolve the case at the earliest possible time. Mediation offers a process in which this result can be obtained.
The Ever-Growing Case: A common experience is that, with the passage of time, more and more issues and claims arise. An early resolution solves this problem.
Unreasonable Expectations: Sometimes, one (or more) of parties develops an unrealistic expectation as to the strength of his or her case. In the mediation process, the mediator will discuss each party's position in a realistic manner and raise questions that will cause each party to justify his or her position. Usually, this process results in realistic compromise.
Flexibility in Resolving the Case: In most civil suits, the only possible results are that one party pays the other a certain sum of money or that neither party pays anything. In the mediation process, the parties are not stuck with these limited options. With the help of the mediator, the parties can be as creative as they are willing to be in designing a solution that satisfies the needs of all parties.
Flexibility in Time and Location: The process is designed to be responsive to the needs of the parties. Mediations may take place at any convenient time, at a convenient location. The parties will not have to wait for a docket call.
Compliance: Most parties comply with agreements that they help formulate. At the close of a successful mediation session, the agreement will be reduced in writing.
If the parties do not reach a settlement, they lose nothing except the time and cost of the mediation session. The case can still go to court. Neither party is prejudiced by discussions with the mediator because by agreement of the parties and entry of an appropriate order by the court:
a) those discussions are not admissible in a court proceeding;
b) the mediator will not disclose any information he or she learned from the parties during the course of the mediation session without consent, and
c) the mediator can neither be a witness nor may he or she talk to anyone about the case. Finally, there is no need to be concerned about "laying all of your cards on the table" during the process. Again, each party controls what is disclosed to the other side. In any event, with the kinds of extensive and expensive discovery tools now available in civil cases, all cards will be likely be showing long before trial.
Generally, a mediation session consists of three parts: The first is a joint session attended by a mediator, the parties and attorneys, or other representatives of the parties. The joint session begins with an introduction by the mediator to explain the mediation process. The role of the mediator and the obligations of the parties to make good faith efforts to work with the mediator to resolve the dispute. This is followed by statements by attorneys or representatives for each party (or the actual parties) in which claims or defenses of the parties are outlined and explained.
The second part of the mediation process consists of a series of private sessions (often referred to as "caucuses") in which the mediator meets separately with each party. Or the parties and the mediator may continue to discuss the issues in joint sessions. In these sessions, the interests and positions of the parties are explored in great detail, and settlement proposals are generated and relayed by the mediator to the other party. It is at this stage that good faith negotiations must take place.
The third part of the process is closure. At this stage, an agreement between the parties is reached, reduced to writing, and the case is settled.
Most cases are scheduled for one full day, and a high percentage of cases are resolved in one day. If necessary and at the option of the parties, the mediation process may continue beyond one day.
Mediations are established in one of three ways:
1) By voluntary agreement of the parties;
2) pursuant to the terms of a mediation clause in a contract between the parties, or
3) by court order. To initiate mediation, simply contact the other side and arrange to select a mediator.
A Mediator is usually selected by agreement of the parties or by court order. See "Selecting a Mediator."
The cost of a one-day mediation is about the same as the cost of a one-day deposition. Each mediator sets his or her own fees. The fee structure will be explained when initial contact with the mediator is made. Most attorney-mediators charge an hourly or daily fee equivalent to their normal time charges. Often, but not always, the mediator's fee is split equally by the parties and is payable prior to the mediation session. This gives all parties a vested interest in a successful outcome. The cost of the mediation session is almost inconsequential when compared to the cost of continuing litigation.
There are at least four prerequisites to a successful mediation:
1) The parties attending the mediation must have the authority to fully resolve the dispute;
2) the parties must commit to negotiating in good faith to resolve the dispute;
3) the parties must be ready and willing to spend the appropriate amount of time in negotiations to give the mediation process a chance to work; and
4) a trained mediator, dedicated to the mediation process, must be utilized.