What is Mediation?
Mediation is a way to resolve disputes where a third-party, called the mediator, meets separately with the parties in an effort to assist them with resolving a dispute. The resolution usually takes the form of a written settlement agreement.
The alternatives to mediation include lawsuits and arbitration, and the difference is that mediation is the dispute resolution method where the parties themselves, as opposed to a judge or arbitrator, determine the outcome of their dispute. The parties and the mediator can often construct remedies and resolutions that are more appropriate and creative than the ones a judge or arbitrator can award. Judges and arbitrators are often limited to the simple result of deciding who should pay how much money to whom. Apologies, accommodation of emotional requests, and agreements governing the conduct of future relations are all more likely to be achieved in the context of voluntary resolution through mediation.
Does a Mediator Decide the Dispute?
Unlike an arbitrator or a judge, the mediator does not have the power to tell the parties how a matter will be resolved. The mediator may make suggestions, sometimes called a “mediator’s proposal.” The mediator may offer an evaluation of the strength of each side’s positions. But there is no resolution unless the parties reach an agreement.
When is the Best Time for Mediation?
Mediation is always appropriate at the start of a dispute. For example, the California Association of Realtors form of purchase agreement requires mediation prior to filing a lawsuit, on pain of losing any right to recover attorneys’ fees. Early in a dispute, the parties have not yet incurred significant attorneys’ fees, and it is likely that the emotions have not risen as high as they will during the course of litigation.
Later in the course of a lawsuit, after the parties have exchanged information in the process called discovery, mediation is also appropriate because the outcome at trial can be better predicted. At that point, there is more certainty regarding which claims and defenses each side can prove, and the amount of damages at stake.
Do You Have All The Parties Meet in One Room?
The problem with everyone meeting together is that emotions may run higher and it may take longer to bring people back to desiring conciliation. Therefore, generally the parties will remain in separate conference rooms, with the mediator traveling between them.
Do You Consider The Issues Prior to the Mediation?
I appreciate receiving a brief statement from each party prior to the mediation setting forth the facts, parties, issues, positions, and prior settlement offers made. I may then contact the attorneys for the parties prior to the mediation to discuss those issues by phone.
Who Should Be The Mediator?
The mediator’s temperament and experience in the subject matter of the dispute are paramount when choosing a mediator. A retired judge who is used to telling people what to do may not have “changed his spots” enough to be effective and patient at facilitating agreement. A generalist may not appreciate the considerations involved in a dispute, for example, concerning the arts or involving probate matters.