What is Mediation?
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?
Mediations
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?
The
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
psychologist).
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.