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.
HOW DOES IT WORK?
The conference is held at a mutually agreeable neutral place. It can be the office of the mediator or another private facility unavailable to spectators. However, the initial mediation may continue with subsequent telephone negotiations between the mediator and the parties where appropriate. Generally mediators will employ face to face negotiations or conduct co-mediations in potentially inflammatory circumstances such as domestic relations.
Present at the session are the parties, their attorneys, if represented, the mediator and others as agreed to in advance. In community mediations there is generally a large number of persons present and often there are co-mediators. The room is spacious and decorum is difficult.
Parties to a mediation may or may not be represented by counsel. When counsel is present the parties may be encouraged to work with the mediators and to confer with the attorneys on legal issues. In general, protocol with the attorneys is set prior to the session. Attendance at the mediation by the party with the authority to settle is essential. In personal injury or workers compensation mediation, the insurance adjusters must advise the mediator that their supervisor or another person with full settlement authority is readily available by telephone.
The session, at the discretion of the mediator or the forum, may be process-centered ( facilitative) or substance-orientation (case settlement or evaluative). Case settlement is often preferred by most courts which use mediation for their small claims cases. Evaluative mediation is used for industry specific mediations where an expert is required to understand the nature of the controversy.
A facilitative mediation will progress through several stages:
Introduction: Initially the mediator will give an opening statement which may or may not be memorized but which will include pertinent information for the parties. It will begin with an introduction and a description of her/his training and experience, do an ethics check and get the names of the parties and their counsel or representatives. Then, administrative matters are discussed: The mediators fee; signing the Agreement to Mediate if not done in the initial contact phase; confidentiality of the proceedings; and the opportunity for subsequent review by counsel of any agreement. Next, the schedule for the conference and any future meetings are determined with breaks, lunch and additional rooms for private meetings. The process is described with a few simple rules of conduct: The parties will use common courtesy and allow each other to complete statements without interruption. They may use the writing pads and pencils provided to allow preservation of thoughts but must allow the pads to be collected and destroyed at the end of each session.
This is the longest period in which the mediator is expected to speak and throughout this opening will encourage the paries toward a good faith effort of settlement and full disclosure to the mediator. All conversations and materials presented in the mediation session are confidential unless otherwise discoverable in a court.
Problem Determination: During this stage, each party will give an account of the facts and circumstances which lead to the dispute. Issues will be identified and summarized.
Generation of Options and Alternatives: The disputants, jointly or in separate sessions (Caucus) with the mediator, will identify areas of settlement. The mediator may summarize the results of the private sessions with each party and encourage options. A realistic assessment of the strengths and weaknesses of each party's own position will be the goal of this stage. Negotiations and decision making by the parties will continue unless the mediator declares an impasse and ends the mediation or continues the mediation in a subsequent session.
Clarification and Agreement Writing: The terms of any settlement will be written by the parties. If legal counsel is not present, the parties may elect to have the document reviewed by counsel and signed at a later date.
PENALTIES FOR FAILING TO REACH A SETTLEMENT?
There are no legal penalties for failing to settle at mediation. In states where mediation is court ordered there may be penalties for failing to attend the mediation conference and making a good faith effort to settle.
When the parties fail to settle, the case may be filed in an administrative agency or court of competent jurisdiction or set for the next action under the forum's procedure. Generally the only report of an unsuccessful mediation is the referral back by the mediator to the court or agency for further processing.
QUALIFICATIONS OF A MEDIATOR
Most jurisdictions, administrative agencies and dispute resolution companies require mediators to have a minimum of 20- 40 hours of general mediation training, a designated amount of mediation experience, either as an observer or a co-mediator with an experienced mediator and a college degree or higher. Applicants must submit proof of completion of training, experience, education, and letters of reference from persons who have used their service, evaluated them as a co-mediator and/or can attest to their character. Most forums prefer to train their mediators or to certify various companies or college programs for mediation training. Mediation training received from a non-certified or approved entity is often held to a high scrutiny as to the level of competency of the trainers and their program.
In most states, a law degree is not required to be a mediator. However states which allow nonlawyers to be mediators have more stringent experience and mediation requirements for the applicants. Four to six hours of training in Understanding the Judicial System of a state is generally a requirement for a nonlawyer or an out of state lawyer who seeks mediation certification in a state in which he/she is not licensed. This requirement is crucial when the mediator seeks court appointed mediations. A similar requirement can be found in instances where an agency certification is sought.
State mediator statutes have ethics provisions and generally a requirement to complete a certain number of hours in a training course on ethics. Most training programs allocate a substantial number of hours to ethics considerations. If there are no locally adopted rules, the trainers will discuss standards of the American Arbitration Association (AAA), the Society for Professionals in Dispute Resolution (SPIDR) or the National Association of Security Dealers (NASD).