What Is a Mediation?
Mediation is simply a facilitated negotiation. The mediation is between the parties to the dispute. The mediator decides nothing. He is in control of the process, helps the parties negotiate, he uses different methods of mediation as necessary for the best possible outcome, reframes statements and asks a lot of questions.
Parties to a mediation must always remember that they own the process from beginning to end. If you do not like the way a mediation is conducted, you can change the rules. You can stop the process at any time.
You should have a Pre-mediation Meeting with your Mediator. Provide him with a narrative of your dispute. He may request additional information prior to or at your mediation session. This pre-meeting should answer any questions you have about the process. This pre-mediation meeting should make your Mediation Session go more smoothly.
Mediation can be Binding or Non-Binding. If you sign a Mediation Settlement Agreement (MSA) that is binding, then you have a legally binding agreement that must be preformed. If that same agreement states that its non-binding then, you may have gained valuable insight but have no obligation to perform. If you start the process but don’t reach an agreement, then there’s no agreement or obligation to either perform or not. However. in any case you are still obligated to the two prior agreements the: Agreement to Mediate and the Confidentiality Agreement.
Housekeeping rules (decorum, demeanor, etc.) during mediation will likely be discussed at the end of the pre-meeting, time permitting. Otherwise at the beginning of the mediation.
You will be presented with an Agreement to Mediate and a Confidentiality Agreement. Then following a successful mediation, a Mediation Settlement Agreement.
Like any difficult negotiation, the successful conclusion of a mediation is usually preceded by a few tough decisions. Parties arrive at a resolution that they can live with.
Your Mediator will control the mediation process, ensure fair treatment and an opportunity for you to be heard. You will not be forced into any decision.
Your Mediation should be a safe, non-threatening process to state your position in confidence. The lack of formality as compared to litigation lends itself to creative solutions that can be faster and less subject to Rules of Civil Procedure than litigation. Mediation often results in less expense than other forms of ADR.
Remember, the mediator decides nothing, he’s just in control of the process. The parties decide what they are willing to do to settle. So, yes, you and your counsel will make arguments to the mediator.
The mediator may begin the mediation session with a joint session involving all parties and counsel. This may be one of the few opportunities to speak directly with the other side. Because of the Rules of Civil Procedure and the formality of litigation, mediation may be your best hope of speaking directly to the other party.
Some things to consider in preparing for mediation, understand what you need to settle your dispute, consider how you might steer the negotiations to where you want to be, write out every incentive you think the opposing party has for settling, provide necessary documentation to help understand, expedite and make decision regarding your dispute, during your mediation session.
In Mediation, there’s no deposition, no court reporter, no sworn testimony or expert witnesses like in litigation.. The parties each present their case informally.
Two of the most expensive aspects of litigation are deposition and trial. Two things noticeably absent from mediation.
There is a dual confidentiality at mediation that protects the process and helps the parties to talk freely with the mediator and one another.
First, the Mediator may decide to conduct parts or all of the Mediation in either joint or private session (caucus). Unless a you authorizes disclosure, any conversation/information in private sessions with the mediator is confidential.
Second, the proceedings at mediation are confidential and are not to be disclosed to third parties, including the court or arbitrators hearing the litigation.
This dual confidentiality is a powerful incentive for using mediation to resolve your dispute, because offers to settle, statements during mediation, documents, etc. are protected outside of mediation and can never be used against you. Courts will not subpoena testimony or information protected by confidence in mediation.
Mediation is especially important where information needs to be kept private.
The Mediation Settlement Agreement
Parties often settle their dispute late, when everyone is exhausted and just glad the mediation is over. Still, never leave a successful mediation without first writing out a Mediation Settlement Agreement that is signed by representatives of all sides.
Too many memories change, buyer’s remorse or negotiations get second guessed after the parties leave your mediation session. Often, it is solely the Mediation Settlement Agreement that prevents a successful settlement from devolving into a complete waste of time because the settlement is not documented.