FREQUENTLY ASKED QUESTIONS
Addressing the challenges in your life is often daunting and we want you help you understand how different approaches to problem solving can be useful as you explore alternatives. Our goal is to take the mystery out of the mediation process and offer these Frequently Asked Questions to help guide you. We offer a free consultation and invite you to contact us.
If you are a party to the action:
- Empowers you rather than a judge or jury to decide the outcome of your case. The judge and jury does not know you or your case and they will not have to live with the outcome. Mediation is a way for you to determine the outcome.
- In instances of working with an adjustor, mediation allows you to personalize the claim because you putt a human face (yours) on the claim that is otherwise just a file on someone’s desk, arguably making it more likely that you will be offered a reasonable settlement when you are sitting across a table from the person making the offer than if you remain merely a set of claim documents and a voice on the phone.
- Mediator — encourages both parties to break the deadlock.
- Mediation can be much faster, easier, and less expensive than the cost of taking a case to trial.
If you are a lawyer or adjustor:
- Cases can get resolved quicker.
- The insurance carrier’s reserves can be closed.
- Both sides can save the expense of expert witnesses, readying a case for trial and the possible costs associated with an appeal.
- Avoids the risk of taking a case to trial and limits potential exposure.
How to determine whether to Mediate your claim
- Plaintiff/claimant and the insurance adjuster are stalemated in settlement negotiations
- The Parties want to attempt to settle the case but there is a lack of trust preventing open and candid negotiations.
- The major sticking point is the extent of the injuries and/or what degree a party is at fault. There does not seem to be any negotiation moves left for you to make, short of preparing going to trial.
- You want to move the case toward settlement and not be delayed waiting for trial.
- You want to avoid the risks of going to trial.
Please visit our Methods of Resolving Conflict summary to learn more about important distinctions between these two conflict resolution methods.
In the event the parties are unable to arrive at a settlement through a collaborative approach, the lawyers withdraw from the case and the parties are free to retain trial lawyers to pursue their matter in court. The result is that the parties will have had the best representation for each phase of their proceeding and materials accumulated during the collaborative stage will be transmitted to the trial lawyer so that there is minimal loss of continuity.
- This process is generally less costly and time-consuming than litigation.
- You are each supported by your lawyers and yet you work cooperatively with your spouse and their lawyer in resolving your issues.
- You retain control of the process. The process does not control you. The process is much less anxiety producing than court proceedings or the threat of such proceedings.
- Everyone can focus on settlement, without the imminent threat of “going to court.”
- The possibility exists that the participants can create a climate that facilitates “win-win” settlements.
- The process is much less time consuming than the traditional litigation model. The case can be finalized within a short time after an agreement is reached—rather than getting bogged down waiting for court dates.
- Your case may be resolved with dignity, which may be of great benefit to the entire family.
- The parties and their lawyers work together as partners in the process, with the parties participating in a fully informed manner.
In mediation, an impartial third party (the mediator) assists the negotiations of both parties and tries to help settle your case. However, the mediator cannot give either of you legal advice or be an advocate for either side. If there are lawyers for each of you, they may or may not be present at the mediation sessions, but if they are not present, then you can consult them between mediation sessions. When there’s an agreement, the mediator prepares a draft of the settlement terms for review and editing by both you and your lawyers.
Collaborative Practice allows you both to have lawyers present during the negotiation process to keep settlement as the top priority. The lawyers, who have training similar to mediators, work with their clients and one another to assure a balanced process that’s positive and productive. When there is agreement, a document is drafted by the lawyers, and reviewed and edited by you both until everyone is satisfied.
Both Collaborative Practice and mediation rely on voluntary, free exchange of information and commitment to resolutions respecting everyone’s shared goals. If mediation doesn’t result in a settlement, you may choose to use your counsel in litigation, if this is what you and your lawyer have agreed. In Collaborative Practice, the lawyers and parties sign an agreement aligning everyone’s interests in resolution. It specifically states that the Collaborative attorneys and other professional team members are disqualified from participating in litigation if the Collaborative process ends without reaching an agreement. Your choice of mediation or Collaborative Practice should be made with professional advice.
Mediation is not always appropriate for every person or situation. Mediated agreements tend to result from meetings where participants are willing to express themselves while demonstrating respect for the other party. A skilled mediator can help parties assess their situation to determine if the mediation process would be an appropriate way to resolve the dispute.
Because mediation is a completely voluntary process, any agreements made are not binding, unless the parties wish so make them so. Any party can leave the mediation if he or she feels it is not working for that party. If the parties enter into a written agreement that has been developed during the mediation, that written agreement is likely to be a binding contract.
Yes, mediated agreement can be legally enforceable after being memorialize in a legal format and signed, but only after the parties have approved the terms and had ample opportunity to review the agreement with legal counsel.
Yes. The Mediator will keep all the information discussed in the mediation sessions confidential as oppose to litigation where everything becomes part of the public record. This is one of the big differences between mediation and litigation. Mediation is considered settlement negotiations. Most mediations end successfully, without litigation. However, in the rare event that the mediation ends and litigation takes place, a party cannot force a mediator to reveal his or her file or testify in court. All participants in the mediation process will be required to sign a contract which contains a provision addressing confidentiality.
A mediator, even if that mediator is an attorney, does not represent either or both parties. Rather the mediator-attorney functions as a neutral facilitator. Mediators can provide legal information, but cannot give legal advice. If participants in mediation are not already represented by an attorney, mediators generally recommend that each party consult with a reviewing attorney to review any agreements arising from the mediation. The Review Attorney should be ‘mediation friendly’ and play a limited role in the process. Mediation friendly means that the reviewing attorney understands the mediation process and respects their clients’ right of self-determination. Reviewing attorneys traditionally are looking to understand the ‘give and take’ in the process, ensure that their client understands what they are agreeing to and understands their individual legal rights and interests. Review Attorneys can provide useful input to their client and to the mediator. The cost of mediation, even using reviewing attorneys, is generally much lower than the alternatives.
A retainer fee will be discussed and the amount will be dependent upon the practice area being mediated. The mediators’ hourly charge will be deducted from the retainer. Time is charged for mediation sessions, and also the work that is done between sessions, such as writing agreements. The complexity of the case and the personality and history of the participants will cause a mediation to take more or less hours.
Mediation is voluntary. You can end the mediation process at any time. However, if you feel that the process is not moving at a comfortable rate or you are feeling intimidated, make sure you inform your mediator so that alternative methods or techniques can be explored to eliminate these barriers.
The answer depends on the qualities you are seeking in the mediator, their skills and how you and the other party feel about the mediator. Mediators use different mediation techniques to help parties reach common ground. Among the types of training mediators receive are evaluative, directive and transformative. One or more techniques may feel better to a party or will be more effective. The more techniques your mediator has the higher the chances you have for success. Additionally, your mediator should have significant training in conflict resolution and experience in the field; mediating cases on a regular basis. Also, Parties need to be able to develop trust in their mediator. Without trust the parties will not have confidence in the process. The mediator should have skills in the practice area which needs to be addressed so they know the questions to ask.