LAW & MEDIATION BLOG
What Do I Need to Know About the Mediation Process?
June 18, 2018
Mediation provides a neutral environment where individuals can safely and confidentially communicate and explore ways to resolve their dispute. Discussions in mediation are facilitated by an impartial third-party mediator trained in managing conflict. The mediator does not represent anyone, has no allegiance to any party, gives no advice, makes no decisions and has no conflicts of interest. A mediator does not need to be an expert in the field of law but is usually familiar with basic legal principles and terminology. The mediators’ expertise is in the mediation process. The mediators’ proficiency lies in their unique ability to talk with each person, help those involved to understand each other’s point of view, analyze the strengths and weaknesses of their case and identify any similarities or differences between individuals’ positions and or perceptions. A mediator helps the parties navigate through impasse using conflict resolution techniques to build realistic, reasonable solutions with acceptable outcomes for all parties. The mediator is an invaluable member of any settlement team.
Traditionally, mediation has been a voluntary process which could be ended at any time, however there is now an increasing amount of court mandated mediations. Recent statistics show where participants voluntarily agree to mediate that between 76-85% of cases reach resolution. The common belief is that disputing parties should attempt to mediate their differences at the earliest possible stage, before litigation. However, multiple entry points exist and are usually considered prior to taking depositions or after depositions but before trial. Most cases are settled out of court anyway, mediation can help you reach a goal of settlement earlier.
General Guide to the Mediation Process
One Party/Attorney proposes mediation to the other Party/Attorney. Both Attorneys present and explain the mediation process to their Clients.
The Parties/Attorneys agree which mediator to use.
The mediation date and location are agreed upon. The mediation session can take place at the mediators’ office as a neutral office is preferable. Alternatively, one firm/Party offers rooms and if multiple sessions are needed the meeting location can alternate between offices.
The mediator sends out the Agreement to Mediate (the mediation contract) and invoices for fees for payment in advance. Traditionally, costs are shared between the Parties.
If relevant, the mediator calls each side for a confidential discussion about the case. This discussion is especially useful in emotionally charged claims so that the mediator can be prepared. In some instances, it may be appropriate to have a joint telephone conference between the mediator and a representative on each side to discuss matters such as: identifying who will be attending the mediation; any outstanding disclosure; exchange of position statements; identifying parties with the authority to settle the case and ensuring disabled access to the building when and if required.
It is highly recommended that you provide the mediator with some background/history on the and the parties agree on what documents will be sent to the mediator in advance. It is usually recommended to provide the mediator with documents no less than seven days in advance of the mediation. Any documents sent to the mediator should be marked “Confidential” if you intend it to be solely for the mediator.
Step 7 (Optional depending upon the type of case)
The parties exchange position statements.
The mediation takes place.
Mediation Process (in general)
Meet the mediator. Introductions by all Parties together with title and role in the process.
Opening joint session (if all parties agree).
Each Party Caucuses (talk privately) with the mediator about the case and maybe consider options for settlement. There may be a few caucuses held depending upon the complexity of the case.
Sign a memorandum of understanding or binding agreement on the agreed settlement terms.
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