Why Choose to mediate if not forced to?
The most obvious reason is the vast savings in expenses. Also, the parties are not required to sit in a room together and listen to the other party’s factual and legal arguments, claims, and defenses (often overstated or exaggerated). Rather they are separated, and the exchange of settlement positions is filtered, to some extent, through the mediator. Most importantly, the mediator can often assist the parties to fashion a creative resolution (often involving non-monetary terms), which would not be possible for a Court or jury to order via a verdict, and can preserve relationships if that preservation is essential to the parties.
When is the best time to mediate?
Many mediations are conducted very close to an actual trail between litigants, primarily because a particular Civil Rule requires it. In those mediations, the parties have usually spent enormous sums on attorney fees and costs to get to that point. And, while both sides may know their “case,” as well as they are ever going to, they may have spent vast sums to do so. Still, a settlement through mediation may be far superior to “going to trial” simply by avoiding uncertainty and risks, reaching some “middle” ground, and allowing each side to achieve some level of success. An “early” mediation is often preferable simply because of the vast savings in litigation expenses and preventing the parties from becoming too entrenched in their respective positions. Early mediation is obviously preferable, providing the parties are either already very well advised of their opponent’s factual and legal position, or have voluntarily or through some negotiated process exchanged that information.
What authority, if any, does the mediator possess in the process by virtue of the parties agreeing to mediate?
The mediator has only those powers conferred on him/her by the parties in their mediation agreement. Generally speaking, the mediator guides the parties through the exchange of information and settlement positions and may assist the parties in drafting a settlement agreement when a settlement is reached during mediation. Because of the confidentiality of the process, a mediator cannot, in the absence of agreement of all parties, disclose to a court or third party subjects discussed or information exchanged by the parties or their counsel during the mediation.
What is the best way to prepare for mediation?
Essential ingredients in a party’s participation in a successful mediation are a realistic knowledge of the facts and law surrounding the dispute, and an open mind to achieving a negotiated resolution. Participants who allow ego, bias, or stubbornness to control their negotiations are often disappointed in the progress (or lack thereof) in the process. If a party has never engaged in the mediation process, it might be advisable (particular in those cases in which one or both parties are unrepresented by counsel) to investigate an on-line description or demonstration of a mediation. In cases in which parties are represented by counsel, obviously, they will want to have a comprehensive pre-mediation discussion with counsel about all aspects of the process, what they can expect, and how they should respond.
What are the primary reasons mediation is successful?
The most essential ingredients to a successful mediation are parties who are reasonably familiar with the factual and legal elements of the dispute, who have an open mind and willingness to compromise their position in order to achieve resolution of the dispute. In other words, parties must approach the process “in good faith.” Parties are NOT required to abandoned strongly held beliefs and positions, but merely should be willing to listen to the opposing position and weigh the benefits of avoiding further expense and uncertainty in proceeding with litigation. Participants with an open mind a realistic understanding of the uncertainties and expenses facing them have the best opportunity of achieving perhaps not a “perfect” but a satisfactory resolution.