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May 1, 2017
Business Law

Mediation-101

What is mediation?

Mediation is a process in which two or more parties discuss their disputes with the assistance of an impartial third party in an attempt to reach an agreement as to their dispute.

This type of process can be used for a variety of matters.

 

Should I use mediation? Is mediation right for my case?

If you are looking for a cost effective and timely way to resolve your dispute, then yes, mediation can be a great alternative to court.

This process is great for parties who are looking to keep information confidential, and for those who want to have more control over the outcome of the dispute. Unless filed under seal, often requiring permission from the court, documents filed with the court are available to the public.

There are few cases when mediation is not a suitable alternative to court.

 

How does mediation work?

A trained mediator will remain neutral while assisting the parties in resolving their dispute. The mediator will use their skills and expertise to ask questions that will help facilitate conversation between the parties which will hopefully lead to a resolution.

The mediator does not advise the parties as to what to do, and they do not make the final decision. The mediator simply assists the parties in an attempt to reach a resolution of their dispute.

 

What is the mediation Process?

Mediation is an informal meeting consisting of the parties, their attorneys and the mediator.  Keep in mind that mediation is not mandatory unless required by the court, statute, or agreement between the parties.  While all parties may voluntarily agree to mediation, they are typically not obliged to go through with it.

If all parties have agreed that mediation is the right process for their dispute, they will meet at an agreed upon location at a specific day and time. The mediator may start by stating the guidelines or protocol and will  then ask that the parties make an uninterrupted statement regarding the issue at hand.  Whomever facilitated mediation will most likely go first.

The mediator will then ask questions to both parties to get a discussion going.  After the discussion, private caucuses will take place where the mediator will talk with each party individually. The mediator may caucus with each side just once, or if needed, numerous times.

After private caucuses, the parties may rejoin to discuss negotiations.  Alternatively, the mediator may extend settlement offers between parties outside the presence of the party making the offer.  Once an agreement has been met, there will either be a verbal confirmation or written agreement.  Parties are not required to resolve their disputes at mediation. The mediator may declare an impasse, at which time the parties may choose alternative means to resolve the dispute.

 

Benefits to using Mediation:

It is timely – All parties are able to meet at their earliest convenience and because they are working together towards an agreement, the process may conclude quicker.

It is cost effective – As stated above, mediation is a faster process compared to a court case.  While a mediator may charge the same fee as an attorney, an agreement may be reached in a matter of hours compared to weeks/months/years for a court case.

You have control over the outcome – Mediation allows for both parties to be heard as they work towards an agreement.  The outcome is decided by the parties rather than by a judge.

It is confidential – Mediation is not recorded or documented, other than a written agreement documenting the terms of the settlement, meaning that whatever happens in mediation stays between the parties.  Mediators most often instruct the parties before mediation begins that all discussions will remain confidential and that any materials sent to the mediator to facilitate mediation will be destroyed after mediation is complete. The final agreement can be verbal but the discussions that lead to the agreement are not published/available to the public.

 

What happens if a Resolution is not found at mediation?

If mediation does not resolve a dispute, and all parties are not able to reach an agreement, parties may agree to meet again for another round of mediation, go to arbitration or take the dispute to court.

 

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