What is Mediation?
is a confidential process in which the parties seek a
mutually-satisfactory resolution of their dispute with the
assistance of a mediator. The mediator assists both sides in
evaluating their positions, in communicating the positions and
interests of each side to the other and in fashioning a
negotiated outcome acceptable to both sides.
The mediator has a duty to keep confidences and to be fair and neutral. The parties sign a confidentiality agreement concerning what transpires at the mediation, and neither the parties' settlement discussions, discussions with the mediator, nor the mediator's notes can be introduced into evidence.
Because the mediator is a facilitator rather than a judge of the dispute, ex parte, or unilateral, contacts are entirely appropriate and can be kept as confidential as each party wishes. This allows the parties and counsel to freely discuss their concerns with the mediator. The decision to settle and the terms of settlement are under the complete control of the parties.
Whether and When to Mediate?
While mediation is a very effective means of dispute resolution, it is not suitable for every case. Moreover, even if mediation is right for the case, mediating at the wrong time can make resolution unlikely. A skilled mediator can assist the parties in determining the suitability of mediation or some other ADR (alternative dispute resolution) process, as well as determining what needs to be done prior to the mediation to enhance the likelihood of success.
What is the Right Venue and Structure?
are often held at the offices of one of the attorneys involved in
the case if suitably private or a more neutral setting if
appropriate. Mediation can be arranged at any location to
which the parties agree.
In some cases, it is appropriate to have pre-mediation sessions with one or both sides, or even to bring the mediator to a meeting of a board of directors or other key decision-makers who cannot otherwise attend the joint mediation session. Flexibility is a significant advantage of mediation.
Joint sessions can be especially productive in rehabilitating an existing business or employment relationship; in many cases, however, joint meetings can have a negative impact on chances for a negotiated resolution. A skilled mediator can assist the parties in assessing the structure most suitable for the dispute.
Who Should Attend the Mediation?
mediation can and should be attended by everyone necessary to
resolve the dispute. This usually means the parties and their
attorneys, but, in some cases (usually involving individual
plaintiffs), it includes spouses or others to whom plaintiffs
may turn for support (e.g., a significant other, pastor or
The necessary people for corporations or institutional parties include those with actual settlement authority (i.e., the capacity to negotiate and move past a predetermined authority cap), managers whose operating budget will be impacted by a settlement or failure to settle and, where applicable, insurance claim representatives. It may also include people needed to provide information or significant company representatives who may have mixed feelings about a resolution. Attendance in person at the mediation is always desirable, but, in appropriate cases, telephone or videoconferencing participation can be accommodated.