- What is mediation?
- Is mediation the same as arbitration?
- Is Mediation Confidential?
- How do I prepare for mediation?
- What if I don't want to discuss something in front of the other side!
- Do I need or have to have a lawyer?
- Will I be required to change my position at mediation?
- What if no agreement is reached in mediation?
- What about the cost of mediation?
- Can I use mediation in matters other than legal disputes?
- Who is present during the Mediation?
- Who decides the outcome of Mediation?
- When is the Best Time to Look into Mediation?
1. What is mediation?
Mediation is an informal process in which all of the parties of a dispute meet with a mediator to discuss what happened, and how they would like to see the situation resolved. Mediation is usually not mandatory, occasionally mediation is ordered by a court during litigation, and all parties need to agree to participate because mediation is generally considered voluntary. Even though Courts sometimes order the parties to mediation, agreement or settlement can never be forced on the parties. Showing up and at least making a good faith effort to resolve the issues is all that is required.
Mediation begins with the mediator explaining his or her role and how the process works. Each of the parties is then given the opportunity to tell their side of the story, to have their say. Each person involved in the conflict has a chance to talk; sharing thoughts, feelings, wants, interests, and needs. After each person or side has completed giving any statement they wish to, each side is given the opportunity to respond to the other parties’ position(s). Depending on the circumstances, the mediator may wish to speak with each of the parties’ separately to get a better understanding of their concerns and expectations of the mediation. The mediator does not give legal or financial advice or decide the issues for the parties, rather the mediator assist the parties to reach an agreement on their own, and in their own terms. This is very different than court where each side presents their facts, and the decision is made for them.
If an agreement is reached, it is put in writing and signed by the parties. If no agreement is reached, then the parties are free to proceed with their claim in court.
2. Is mediation the same as arbitration?
No. The mediator does not give legal advice or opinions, and does not make any decisions for you. You are encouraged to make your own decisions. Arbitration, on the other hand, is a process whereby a neutral individual or panel of people listens to the facts and issues in the dispute, and renders a decision for you. Once you have your say, you have very little to do after that. Generally, but certainly not always, arbitration is “binding”, meaning you cannot usually appeal or challenge the arbiters decision.
3. Is Mediation Confidential?
Yes. Mediation provides two layers of confidentiality. First, the process, by its nature, is deemed confidential. Second, you have the ability during the mediation to meet with the mediator separately. In these separate sessions, you will be able to share information with the mediator that you might otherwise not want to share with the other side. The mediator is obligated to keep this information private, unless you expressly grants the mediator permission to share that information with the other side. There are some exceptions to mediation confidentiality which usually involve required disclosure when information of domestic violence and child abuse is disclosed.
4. How do I prepare for mediation?
Take the time to consider your claim, and identify those issues which will need to be resolved if your claim is to settle. Once you have identified the important issues, make sure you know the facts that support those issues inside and out. If you will need any records, documents or diagrams to support your positions, have them ready and available. In fact, it would be a good idea to have copies of any such records available for the other side to review. Make your presentation in a calm manner. It is important to keep your emotions in check, and remember you will not be trying to persuade the mediator that you are right, since the mediator will not be deciding your claim. You need to focus on demonstrating that under the specific facts of your claim, your position is reasonable, and the other side is not. Finally, be prepared to give the mediation process a chance. With all of the different positions and opinions, mediation is like working on a puzzle, and just like a puzzle, if you stay with it you usually succeed.
5. What if I don't want to discuss something in front of the other side!
During mediation anyone, including the mediator, may ask to meet in a private session. It is not uncommon to have a private meeting or “caucus” during mediation, nor is it uncommon not to have such a meeting. What is important about the private meeting is that all conversations in the meeting are confidential. Nothing said in those meetings will be repeated to the other side, unless you give the mediator specific authorization to do so, and then only the specific information you authorize to be repeated.
6. Do I need or have to have a lawyer?
No, lawyers are welcome, but not necessary. Mediators are available to handle a wide variety of matters and issues, some of which involve parties who are having a dispute, but who have not yet hired lawyers, and who want to try to resolve their dispute without having to do so. In that case, only you can decide if you wish to have a lawyer present. Remember, a mediator is not going to give you legal advice, or act as your lawyer, so if you want unlimited access to legal advice you will have to bring your own lawyer. If you are unrepresented, and reach an agreement during your mediation, you should always have any settlement documents reviewed by an attorney before signing.
If you are already represented by an attorney at the time of mediation, your lawyer will be with you during mediation to provide legal advice and recommendations, and to review any settlement documents prior to signing.
7. Will I be required to change my position at mediation?
No. Mediation does not require that you change you mind. All that mediation does is give you the opportunity to present your position directly to the other side, and in return, allows them to do the same. No one is forced to settle or accept the other sides’ position. The obvious goal of mediation is that the honest and open discussion of facts and issues will lead to a mutual understanding of issues, and allow the parties to reach an agreeable solution themselves.
8. What if no agreement is reached in mediation?
If no agreement is reached you can still proceed through the regular court procedure. At the very least you will have a better understanding of the other side views the facts, and what their position is. This understanding may lead to an agreement in the future. Either way, mediation does not remove your rights to go to trial.
9. What about the cost of mediation?
Mediation can actually save you money. When a claim is mediated, the cost is usually shared equally between the parties, and it is less than going to trial. If your claim is in litigation, and you have not already paid expert witness fees, deposition and other cost, a mediated settlement simply saves those expenses. Another important aspect of mediation, when it comes to cost, is do not underestimate the cost on you. The time, stress and inconvenience with taking a case to trial can be significant. Sometimes you have no choice, and a claim simply will not settle, and you must take it to court if it is to be resolved at all. On the other hand, if you give mediation a chance, and you reach an agreement, settlement could bring peace of mind just knowing it is over, and only you know how much that is worth.
10. Can I use mediation in matters other than legal disputes?
Yes. Mediation can be, and is, used to resolve conflicts between family members, business owners, landlords and tenants, neighbors, employers and employees, homeowners and homeowner associations, insured’s and insurers, and anywhere there are disputes. Many of these disputes could and do escalate into full blown legal battles, but early use of the mediation process may lead to a pre-lawsuit resolution of these matters.
11. Who is present during the Mediation?
One of the benefits 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 must abide by the terms of confidentiality that govern the mediation process, and each side is usually responsible to cover the cost of their own experts etc.
12. Who decides the outcome of Mediation?
You do. If you do not agree, no one can force you to settle. If you reach an agreement, then it is written down, reviewed and signed by the parties. This is far better than having to accept a decision made by someone who does not know you, and then have that decision imposed on you by the "Law", a judge, or a jury. After all, who knows better than you what is in your best interests.
13. When is the Best Time to Look into Mediation?
Mediation is appropriate at any stage of conflict! It is never too late! Some people use mediation proactively. For example, if they see a possible problem coming in the future, they may use mediation to come to an agreement ahead of time on how to handle the issue if it comes to be. Other times, people may put a mediation clause into an agreement which provides that any future disagreements or conflicts will first go to mediation before they go to court. Some groups or organizations may have a mediator on retainer to provide ongoing mediation services for disagreements that may come up over a specific time period. However, most times people contact a mediator only after a conflict or dispute has come up, and is not going to go away, or they are already in litigation, and the mediator is retained by their lawyer. In any of these circumstances there is nothing to lose if you give mediation a chance, and so much to gain. You may just surprise yourself, even in the midst of heated litigation, you may mediate an agreement that everyone can live with.
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