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Mediation PDF Print Email

WHAT IS MEDIATION?
Mediation is an alternative dispute resolution (ADR) process whereby the parties are assisted by a trained and skilled third party. The mediator facilitates confidential communication, reconciliation and negotiation between the parties to reach a voluntary and mutually agreeable resolution.

HOW IS MEDIATION DIFFERENT FROM LEGAL LITIGATION
In legal litigation, the parties retain attorneys whose focusis to prepare a case which will result in the best decision for their client by a judge. Often, litigation includes an adversarial approach demeaning the other party. In litigation you never know what the outcome will be until the case is ruled upon. There are no guarantees that anyone will come out as the 'victorious party'. In the long run, everyone pays a price in litigation.
Mediation is based on the principle that people are capable to resolve their own disagreements if given the right support. Generally, it is non-adversarial and the parties agree that all information will be openly shared in a safe, neutral environment. It is a voluntary and confidential process. Either party can withdraw or choose not to participate at any time. The mediator does not judge who is right or who is wrong, but works with parties to help them arrive at a solution to satisfy their interests. No tape recordings are made and no court reporter is present. The mediator will not reveal anything discussed during the mediation to anyone other than the participants. The mediator does not represent either party. Generally, the mediation does not include lawyers except in a consulting or reviewing capacity. However, in some cases, mediation includes both parties and lawyers.

WHEN IS MEDIATION USEFUL
Mediation is effective when both parties want to resolveadisagreement. It is most effective when:
• The Issue involves strong emotional feelings
• The parties know each other
• The parties want to maintain their relationship
• One party is uncomfortable confronting the other side
• The parties have reached an obstacle in their discussions
• One or both parties want to avoid costly legal litigation
• The issue does not involve class action or punitive damages

WHAT KIND OF DISAGREEMENT CAN BE MEDIATED
Generally any kind of disagreement can be mediated.Theexceptionsare class action suits, cases involving punitive damages, and lawsuits which require statutory, judicial or regulatory case law to resolve. Whether it is a civil dispute involving hundreds of thousands of dollars, a workplace dispute, a divorce, or a family matter, the parties can resolve it without resorting to traditional adversarial litigation. Even after litigation has been started, mediation can be a practical way to settle the matter in a less expensive and timely manner.

WHO SHOULD CONSIDER MEDIATION
Mediation works best for parties who wish to settle withoutgoing to court and are willing to commit to a good faith effort to do so. Mediation is very effective when the parties live nearby or have to maintain their relationship on a day-to-day basis. Co-parents, business colleagues or circle of friends and relatives often have continuing relationships with each other. There is a mutually beneficial incentive to continue an amiable relationship and to explore ways to prevent disagreements from arising in the future. Mediation allows the parties to maintain control over their decision making rather than letting a judge decide. The parties control the amount of information that becomes a part of the public record. Normally, court files are open to the public, including any allegations made by either party.

WHAT DOES MEDIATION DO
Mediation usually focuses on the underlying interests oftheparties, and not their positions. Mediation is used to:
• Define complaints, problems and disputes
• Discover options and solutions
• Manage resolution process in a ‘win-win’ manner
• Facilitate mutually agreeable settlements
• Formulate guidelines and policy
• Record agreement with written documentation
• Helps prevent future disagreements

WHAT ARE THE MOST IMPORTANT ASPECTS OF MEDIATION
Aside from low cost and high success rate, mediationprovidesfour important aspects.

Privacy. The process of mediation is confidential as it relates to all participants, including attorneys and the mediator. Everything discussed in the mediation is confidential. Any documents that are exchanged in the mediation are confidential. Any legal or other suppositions advanced in the mediation are confidential. Mediation is not a matter of public record.
Control. No judge will decide the parties’ outcome. There is no legal precedent or jury to scrutinize right and wrong. The parties have the unique opportunity to "tell your side of the story", without lawyers objecting that what you're saying is inadmissible for some reason. The parties have the experience of creating your own resolution in your own words to resolve their disagreement.
Relationships. Most relationships are important to maintain intact. Business partnerships, family, friendships and social relationships of long standing are often soothed and become closer as a result of mediation.
Responsibility. The mediation process encourages the parties to assume personal responsibility for their respective roles in the disagreement. It’s not blaming the other side but rather accepting ownership for the things contributed or done to create the disagreement. Remember, its takes two to tangle.
Speed. Resolution for most disagreements is usually achievable within a day or two and no longer than 30 days. More complex disputes and conflicts may require more time and communication to explore the interests and positions involved.

WHAT ARE THE DIRECT BENEFITS OF MEDIATION
Mediation usually provides a quicker, more cost effectiveandmore satisfactory outcome than legal litigation. It may take months and sometimes years to resolve a disagreement in court, mediation can be paced according to the parties’ needs and schedule. Mediation is voluntary and requires both parties agreement to the make a final resolution. Therefore, parties are more satisfied with the outcome than with a decision made by a judge or jury. This results in a higher likelihood of compliance with the mutual agreement since parties are usually more likely to comply with a solution to which they agreed. In mediation, the parties are able to customize the resolution agreement to meet their needs rather than being constrained by the limited options available in court. Most important, parties are more likely to preserve an amicable relationship in the future.

WHEN IS THE BEST TIME TO BEGIN MEDIATION
The best time is sooner rather than later, before the partiesincur the expense and emotional turmoil of legal litigation. It frequently happens that one party is ready to begin mediating before the other, so some sensitivity to the feelings of the other party is courteous. If legal representation has already been secured, it is not too late. Most cases settle before trial, so it's almost never too late to mediate. Most legal professionals and courts advise mediation before litigation.

WHY USE MEDIATION IF WE ARE UNABLE TO AGREE
Most times it is not so much ‘not wanting’to agree but is ‘knowing how’ to agree. A mediator can bring a new perspective. The mediator’s own experiences and knowledge can assist parties in exploring alternatives that they might not have previously considered.

WHAT GOES ON AT A MEDIATION SESSION

Within a mediation session, two types of meetings can occur. First, the joint session. This is when everyone is present; parties, their representatives and lawyers meet with the mediator and outline the basic issues, interests and positions of each side. The second type of meeting is called caucus. A caucus is a private and confidential meeting between the mediator and one of parties and their attorney(s). In mediations, both types of meetings occur as it helps overcome positional obstacles and helps maintains a forward progress toward a mutually agreeable resolution.

IS MEDIATION LEGALLY BINDING

Yes, mediation is legally binding if both parties agree upon a mutual resolution. This mediation resolution must be signed by both parties. The mediation resolution agreement is filed with the county clerk and entered as an official record.

CAN A MEDIATOR BE A WITNESS OR TALK TO THE JUDGE

No. Mediator can neither be a witness nor talk to anyone aboutthe case. Additionally, neither the parties nor their attorneys may introduce into evidence what happened or did not happen during the mediation.

ARE THERE DIFFERENT TYPES OF

Yes. The role of the mediator is a bit different in eachtypeand most mediators utilize a combination of these types.
Facilitative Mediation:
In a facilitative mediation, the mediator will take an active role in controlling the "process." The mediator asks questions to identify the interests of the parties and the real issues in the disagreement. The mediator helps the parties explore solutions that benefit both parties. In a facilitative mediation, the mediator does not offer an opinion on the strengths and weaknesses of the parties' cases. The mediator does not suggest solutions.

Transformative Mediation:
Transformative mediators try to change the nature of interaction by a) helping each party appreciate each others viewpoints; and b) by strengthening each party’s ability to handle disagreement in a productive positive manner. The mediator will intervene in the conversation between the parties in order to call attention to moments of recognition and empowerment. Ground rules for the mediation are set only if the parties set them. The mediator does not direct the parties to topics or issues. Instead, the mediator follows the parties’ conversation and assist them to talk about what they think is important. The transformative mediator does not offer an opinion on the strengths or weaknesses of the parties’ cases. The mediator does not suggest solutions.
Evaluative Mediation:
Evaluative mediators use their expertise to focus and assist parties: a) to assess the strengths and weaknesses of their legal or other positions; and b) to achieve settlements. In evaluative mediation, the mediator controls the process and suggests solutions for resolving the conflict. Individual meetings between the mediator and one party at a time (caucuses) are a major component of evaluative mediation. The focus of an evaluative mediation is primarily upon reaching a settlement. The mediators will make their best efforts to get the parties to compromise, if necessary, to achieve a result.
Conciliation:
This process is similar to mediation but the conciliator acts more as an 'inventor' of solutions which are presented to the parties with a view of getting them to agree as to how the disagreement can be resolved. The conciliation mediator frequently provides suggestions and out-of-the-box ideas. Conciliation differs from mediation in that the main goal is to conciliate, most of the time by seeking concessions. Generally there is a mixture of fact-to-face and private caucuses sometimes referred to as ‘shuttle diplomacy’. The conciliator meets with each party to separately prioritize a list of interests from most to least important. Then goes back and forth between the parties and encourages them to "give" on the issues one at a time, starting with the least important and working toward the most important for each party in turn. The parties rarely place the same priorities on all objectives, and usually have some objectives that are not on the list. The conciliator builds a string of agreements and help the parties create an atmosphere of trust which the conciliator can continue to develop into a ‘total’ mutually agreeable resolution.
Expert Determination:
Historically, this form of mediation has been used when the parties have strong defined positions that need to be subjected to an ‘expert’ or panel of experts to evaluate their positions, define the specific interests and help craft a suitable solution. The expert mediator(s) are very knowledgeable and possesses years of expertise in the area of the disagreement, dispute or conflict. Both parties of the mediation respect and trust the mediator(s) to help them resolve their differences and craft a solution that will be mutually beneficial to them and to their particular field or industry. Often the mediation details are not confidential, except for trade secrets, as industry policies and guidelines are often determined. The mediator(s) is empowered to make a settlement and/or policy which may or may not be agreeable to either party.

WHAT SHOULD I KNOW ABOUT A MEDIATOR BEFORE CHOOSING A MEDIATOR

You should approach hiring a mediator just like you wouldany other professional. Speak with many mediators to get a feel for their style and approach to the process. In addition, ask questions about the following:
- Training, experience and background;
- Experience or knowledge in mediating the type of issues you have;
- Fees charged and how fees are divided among the parties to the mediation

IF I USE MEDIATION, WILL I NEED TO GO TO COURT

In specific cases, for example, in divorce you need to file in court the divorce paperwork. If a mutually agreeable resolution in mediation to all of the property, financial, custody, parenting and other issues and the court accepts your settlement, it is unlikely that you will have to make many, or any, court appearances. Please consult with a lawyer prior to mediation on your local Judicial System requirements.

MUST AN AGREEMENT BE REACHED IN MEDIATION

No party is forced to accept a solution that does not meethis/her interests and needs. The parties should understand that the mediation goal is to create a solution that comes as close as possible to a "win-win" agreement, while recognizing that parties don't receive everything on their wish list. If no resolution, the parties may still go to court to resolve their disagreement

 

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