ADR Options - Mediation
The Mediation Process
Our panelist Randy Wallace defines mediation as “intelligent people making sensible decisions to solve their problems.” How does this work, exactly? The following is a description of the mediation process, its advantages, and what you may expect when you mediate with us.
Mediation is the most informal and often the most effective type of Alternative Dispute Resolution (ADR). As an alternative or adjunct to litigation, ADR is any process in which people in conflict meet with a third party “neutral” to assist them in resolving their conflict outside of court. Some matters may require mediation before filing a lawsuit, and most court cases are referred to mediation before setting a trial date.
Mediation is voluntary and flexible. It empowers participants with significant control, discretion, and decision-making authority throughout the proceeding. The mediator does not issue a ruling or compel the parties to do anything. Instead, the mediator facilitates communication so that people in conflict can reach their own legally binding settlement agreement.
In contrast to most court hearings, mediation provides disputants a safe, private forum with plenty of time to be heard and have their issues thoroughly considered and addressed. Unlike being represented by an attorney before a judge in court, mediation participants may interact directly, exclusively, and at length with the mediator.
Unlike a protracted trial with extensive, expensive trial preparation and discovery, a well conducted mediation can result in resolution in a single day, or in unusually large or complex matters, a few sessions. While a trial date may take years to obtain, we can set your mediation date to occur within weeks. This saves money, preserves vital relationships, and allows people to timely return to their lives without enduring the trauma of litigation
The mediator begins his or her preparation by reviewing each party’s mediation statement. There is no required length or format. The statement can be an informal letter or formal pleading and should include any supporting documents. We recommend exchanging statements with all parties ahead of time, although we will accept confidential statements submitted to the mediator only.
Next, the mediator will contact counsel or self-represented individuals by telephone to discuss follow up questions and determine how best to proceed at mediation.
On mediation day, the case manager will show each party to their conference space and request attendance sheet signatures. We will serve food and beverages. You will already know your case manager from having scheduled your mediation, completed paperwork and billing, and addressed your questions and concerns with her or him prior to the mediation date.
The mediator will often begin with a joint conference with all attendees to outline certain ground rules and how the mediation is expected to proceed. The mediator may elect to solicit opening statements at this time.
The mediation conference may be attended by counsel and must be attended by all those possessing settlement authority on each side. The mediator will meet with the participants together and/or separately as appropriate. If they wish to remain separated throughout the mediation, the parties will advise the case manager or mediator. Private meetings, also known as caucuses, can be confidential. The mediator will not disclose information obtained during a caucus if advised that it is confidential.
Mediation attendees agree to participate in good faith and cooperate with the mediator. They should feel free and be willing to candidly discuss their concerns and the relevant facts and laws with the mediator. The mediator will moderate communication, identify and reframe the issues, and help address the obstacles to resolving the dispute. All participants will work to ensure that each side comprehends the other’s point of view.
To encourage participants to speak freely and get to the bottom of things, mediation discussions and the materials developed at mediation and prior to the mediation are confidential and inadmissible in any subsequent court proceeding.
Mediation ethics require the mediator to ensure that any agreements reached are voluntary and informed. Once the general terms of the agreement are reached, the mediator will assist with the process of drafting and finalizing the settlement agreement.
The settlement agreement is a binding and enforceable contract. If a signator fails to comply with the terms of the settlement agreement, the parties may choose to return to mediation or address the breach of contract in court.