Mediation is a procedure in which the parties discuss their disputes with the assistance of a trained impartial third person(s) who assists them in reaching a settlement. It may be an informal meeting among the parties or a scheduled settlement conference. The dispute may either be pending in a court or potentially a dispute which may be filed in court. Cases suitable for mediation are disputes in commercial transactions, personal injury, construction, workers compensation, labor or community relations, divorce, domestic relations, employment or any other matters which do not involve complex procedural or evidentiary issues. Attendance at the mediation conference is voluntary by the parties, except where governed by statute or contract clause.
The mediator is a person with patience, persistence and common sense. She/he has an arsenal of negotiation techniques, human dynamics skills and powers of effective listening, articulation and restatement. The mediator is a facilitator who has no power to render a resolution to the conflict. The parties will fashion the solution as the mediator moves through the process. In many jurisdictions the mediator is an attorney but can not give legal advise while in the role of a mediator. However, the mediator’s subject area expertise may be beneficial to the parties in wording and framing the mediated agreement or in circumstances where the parties are open to neutral case evaluation.
BENEFITS OF THE MEDIATION PROCESS
There are numerous reasons why a party to a dispute might choose mediation over traditional litigation or other forms of alternative dispute resolution. Some of them are affordability, timely resolution, private sessions, confidentiality, participation in the resolution of the dispute, and in many cases preservation of the interrelationship between the parties.
The cost of mediation is less than the average cost in time and money for the litigation of a dispute. The mediator’s hourly rate is generally lower than the hourly rate for a lawyer. Parties can often schedule mediation within weeks of a decision to mediate or a court order to mediate.
Mediators offer their services in the evenings, weekends and regular weekdays. There are no spectators to the mediation and whatever is said in the mediation can not be repeated or reported by the mediator to another party. The Settlement Agreement is the only record of the proceedings. The Agreement to Mediate which is signed by the parties prior to the conference will often remind the parties of the confidentiality of the session and that the mediator is not available as a voluntary witness in a trial of the matter.
The ability to fashion user friendly resolutions to a dispute is an attractive component of mediation. The parties are empowered to solve their problem in workable terms to achieve a “win-win” solution. This often promotes healing where one party feels tremendously aggrieved or allows the parties to continue their business, employment or personal relationship. In many cases the parties strengthen their working relationship for greater workplace efficiency.
The ability to move cases to resolution is an ever present problem for attorneys as they seek to improve the financial status of their practice. This is complicated by court dockets that are backlogged and much time is spent waiting for a judge or jury to be assigned even on a day when a case is scheduled. Continuances are often requested by opposing counsel in routine matters which if resolved would limit the amount of manpower allocated to a particular case.
Mediation offers an opportunity to improve case management/resolution and client satisfaction. An employment discrimination complaint can take years to litigate. Using various forms of alternative dispute resolution available in the area of employment law, an attorney can resolve such complaints in months after the investigation is complete. A personal injury case with a simple soft tissue injury can be mediated in a matter of weeks after submission of the demand letter to the insurance company in areas where insurance companies have agreed to mediate certain classes of cases.
Swift, efficient movement of workers’ compensation cases, contested divorces with complicated property and custody issues and business contract disputes can improve the financial status of your firm. The corollary benefits are customer/client satisfaction, increased client referrals and more time for complex cases.
Mediation offers the opportunity to improve your bottom line by adding a service to your practice. You can become a court appointed mediator for court ordered mediations, advertise your services to members of the bar who are looking for mediators with special expertise or collaborate with a group of lawyers to provide a mediation service for a particular industry or area of law.