Mediation is a dispute-resolution process where the mediator, who serves as a legally-trained neutral third party, can assist those involved in a dispute to discuss the issues and work together towards an agreed solution. A less formal and time-consuming alternative to ligating through the courts, these guided negotiations give each party the opportunity to discuss their issues and interests, provide each other with important information, and then propose ideas for the resolution of the dispute. The rationale of mediation is to explore alternative solutions to a dispute by seeking and finding common ground, rather than approaching the issue strictly in terms of each disputant’s view of the facts and demands.
There are a number of different ways that a mediation can proceed, but they are typically held at a mutually-agreed neutral place (such as a private office or meeting venue), but may be conducted via videoconference (such as Zoom), when preferred, as in the social-distancing requirements brought on by the coronavirus, where appropriate. Present (in person or virtually) at the session are the parties, their attorneys (if represented), and the mediator. For the best chance at success, attendance at the mediation by all parties with full authority to settle is essential- for instance, in personal injury or worker’s compensation mediations, the insurance adjusters must arrange for a representative with full settlement authority to be readily available.
Mediation can take many forms, and can be “facilitative” or “evaluative”. Facilitative mediation approaches finding a long-lasting, mutually-beneficial solution by more directly facilitating communication between the parties. Evaluative mediators instead focus on proposing terms of settlement after assessing the merits of each parties’ claims. Evaluative mediation can be helpful in hopes of reaching an agreement before going to trial, and for technical or industry-specific mediations, where experts may be needed to understand and help explain intricacies involved in the controversy.
Mediation typically proceeds in several stages, as follows:
Pre-mediation submission and review of position papers
Depending on the matter in dispute, the mediator may request, or the parties may submit, a short statement of the dispute, background, issues, critical facts, status of discovery, strengths and weaknesses, potential outcomes, damages expected, etc. Such a submission should help the parties and the mediator prepare for the mediation, minimize potential pitfalls, etc. In addition, I prefer a brief telephone call with the parties or their counsel, a week in advance of the mediation, to be sure everyone has what they need and the mediation can proceed as scheduled.
Introduction and Opening Statements
Most mediations begin with the parties together in a joint session. The mediator will make his/her own opening to describe how the process works, introduce the parties and their role as a mediator, and will help define the protocol, establish ground rules of conduct and an agenda for the process. Here, the importance of confidentiality is discussed.
Opening Statement by the Parties
Disputants then can make their own statements regarding the circumstances of the dispute and its consequences, financial and otherwise. This is not necessarily just a presentation of facts, but an opportunity for each party to present their perspectives and frame the issues in the context of their own needs and interests. If there are attorneys present who make the initial statement, the mediator may provide an opportunity for each client to make his/her own statement, as well.
Problem Identification; Exploring Options
Once opening statements are presented, the mediator will ask the parties questions and may repeat back key ideas to the parties, in order to clarify and determine key issues and common goals between the parties. Frequently these discussions continue with the parties in separate rooms, while the mediator conducts “shuttle diplomacy” between the various rooms.
Disputants then, either jointly or in a separate private sessions (caucuses), discuss facts, points and counterpoints. A skilled mediator then begins to ask pointed questions, geared at identifying critical needs of the parties, as opposed to “wants”. The mediator helps the parties identify options towards resolution of various points in dispute. The mediator may shuttle between the private sessions, to help the parties assess and summarize the strengths and weaknesses of each position, suggest potential options and present offers or proposals. These discussions and negotiations continue until the mediator has helped the parties reach agreement on the critical terms of settlement, or the mediator declares an impasse and ends the mediation, or the mediation discussions are stopped briefly, then continued into a later session.
If the disputing parties reach an agreement, the mediator may help reduce and clarify the agreement terms into a simple written contract, which then should be enforceable in court as a written contract. If legal counsel is not present, parties can elect to have the details of the agreement prepared and signed at a later date. It is important to note that while attendance may be legally mandated, there are no legal penalties to failing to settle at mediation.
The above is a summary of the author’s experience as a mediator and as counsel to parties in numerous mediations. It may contain my comments or views only.
This article is intended for general interest and does not constitute legal advice.
We at Herd Dispute Resolution, LLC, would be pleased to discuss this article, or how Mediation may help resolve your dispute. Please call us at 713-955-4299, or via email at CFH@HerdDisputeResolution.com.