1. What exactly is mediation?
It is a dialogue facilitated by a trained, knowledgeable, skillful and neutral third party designed to help the parties in resolving their legal dispute and in satisfying their needs, interests, and goals.
2. Is mediation voluntary?
Mediation may be court-ordered or voluntary. In either instance, any resolution of the parties’ conflict through mediation is entirely voluntary.
3. What if I don’t trust the other side, or believe they will not cooperate?
The mediation process often encourages parties to begin to trust one another. Mediation offers parties the opportunity to express what they need and desire. The mediator assists in creating a positive dialogue.
4. What if I don’t want to discuss everything in front of the other side?
The mediation process can include caucusing or private meetings, in which the mediator meets individually with each party or groups with the same position. Anything discussed in caucus remains between the mediator and parties present unless the parties choose to share the information with the other party or invite the mediator to do so for them.
5. What if I am NOT going to change my mind?
Mediation does not require that any party change his/her mind. Instead, it offers participants the chance to express themselves and listen to the other parties involved in the dispute. It is an attempt to find a resolution through clear communication. The mediator is neutral and will not impose a resolution or make decisions for ANY participant.
6. Does Mediation Apply Only to Legal Disputes?
No, mediation can be, and is, used to resolve conflicts between family members, business owners, landlords and tenants, neighbors, and employers and employees. Often, those conflicts revolve around personal differences and miscommunications rather than legal issues. The negotiation orientation of mediation makes that process ideal for resolving those and other nonlegal disputes.
7. Who is Present During the Mediation?
One of the best aspects of mediation is its flexibility. Parties are free to have consultants, accountants, attorneys, or whomever they desire present during the mediation. Of course, all individuals who participate must abide by the terms of confidentiality that govern the mediation process.
8. Who Determines the Outcome of a Mediation?
The parties determine their own solutions with the guidance of the mediator. Through mediation, the parties are able to communicate directly with one another and to gain understanding.
9. What Happens if an Agreement is not Reached in Mediation?
There is very little downside to mediation, even if an agreement is not reached. The process is voluntary, and if it is not progressing, usually becomes clear early in the process. From this perspective, very little expense is incurred because the mediations that do not reach agreement generally terminate rather quickly. Sometimes parties worry that, if an agreement is not reached, they will have “played their hand.” One need not play his/her “hand” because parties in mediation always have the ability to call a private session. Also, even in litigation, parties are forced to “play their hand” under our rules of discovery and disclosure, which are more liberally construed today than ever before.
10. Mediation is an added expense. My lawyer says it is a waste of time. Is it?
Mediation can actually reduce a party’s costs because they are not required to have an attorney present and there are no hidden fees. There are no filing fees or witness fees. Results are usually achieved with a lot less emotional outlay and are quicker than court proceedings.
Mediation is not a waste of time unless the parties do not fully participate by listening to what each other has to say. No agreement is imposed or forced. A better understanding of the other participants may lead to an agreement in the future. At the very least, all parties have the chance to fully express their feelings, wants, interests, and needs without interruptions, which does not occur in court or arbitration.
11. Do I need a lawyer? Can I bring my lawyer?
Lawyers are welcome, but not required. Only the parties can decide if they wish to have counsel present. If you want unlimited access to legal advice and/or feel safer or stronger with counsel present, it probably makes sense to bring your attorney. However, keep in mind you will need to pay him or her for their time. You may prefer to ask your attorney if he or she is willing to be available by phone to check in and run things by him or her.
12. What if no agreement is reached in mediation?
Mediation does not take away any party’s rights to go to trial or, as the case may be, arbitration. If no agreement is reached, the parties can still proceed through the regular court procedure or, instead, may choose or be required to arbitrate their case.
13. What is arbitration?
A process in which a neutral individual or panel listens to the issues in the dispute and renders a decision regarding liability and damages. Voluntary arbitration allows the parties to select the individual or panel. Generally, the cost is split equally. Non-binding arbitration allows parties to refuse the decision and move on to the court process. Binding arbitration generally means that neither party can appeal the decision or take it into court.
14. What is Med-Arb?
Med-Arb is a full mediation session followed by a full arbitration session if the mediation session is not successful in resolving all of the disputed issues. A mediator is pre-selected by the parties and, generally, a separate arbitrator is either pre-selected by the parties or the parties will wait to select an arbitrator based on the specialization that the arbitrator will need to posses in order to understand and handle the issues being presented to arbitration.
15. When is the Best Time to Consider Mediation?
Mediation is appropriate at any stage of conflict. Some parties use mediation proactively. For instance, if they anticipate a problem arising in the near future, they may use mediation to facilitate a dialogue and agree ahead of time as to how that problem will be handled. Other parties insert mediation clauses into their agreement, providing for the mediation of future conflicts. Often, parties contact a mediator when they recognize a conflict has arisen and is not going to go away. When that happens, it is never too late to propose mediation. There is very little to lose in doing so, and so much to gain. Repeatedly, parties surprise one another and, even in the midst of litigation, engage in mediation to a successful agreement.