Mediation FAQ: Frequently Asked Questions

What Is Mediation?

Mediation is a process of supervised negotiation. Parties who have a serious dispute agree to meet with an impartial facilitator to discuss possible settlement of the dispute.

What kinds of disputes can be mediated?

Almost any civil dispute can be taken to mediation. Experience has shown that the process of mediation can address and resolve a wide variety of claims. Although property or money are usually involved, much of the mediation process looks at issues of responsibility (liability), at issues of the extent of liability (causation), and on the fair basis to measure the injury (damages.) Some or all of those issues are present in some fashion in almost every mediation.

When is a dispute ready for mediation?

When both parties can commit to participate in good faith in a mediation, and to explore possible settlement, a dispute can be submitted to mediation. The parties need to agree to attend, to agree on the identity of the mediator, and to agree to share in the costs of that mediator's service.

When are disputes usually mediated?

Most cases reach mediation after they have been in litigation process for many months; sometimes years. After a case has been defined on paper (in the pleadings), and after some "discovery" process (exchange of documents and depositions of witnesses), each side can evaluate the strengths and weaknesses of the case. Mediation discussions then focus on evaluation of the likely outcome of disputes over certain facts and how the law will apply to those facts.

However, some parties seek early mediation when there is perceived value in an early resolution. If damages are ongoing, or in order to avoid the costs of litigation, the parties may have a real incentive to explore settlement possibilities very early in the case.

What does mediation do?

(1) Mediation leads the parties to look at their underlying interests, and not only at their stated legal positions:

It defines the dispute. That is very useful - to cut through the posturing in order to get at the heart of the problem. Sometimes a party will admit something only for purposes of the mediation. They will surrender a previously-stated position if it can help settle the case.

(2) Mediation provides a safe place to discuss settlement possibilities.

The entire mediation process is protected by confidentiality under state law. Nothing said in the mediation can be used later if the case does not settle.

Each party can speak candidly to the mediator (in separate and private caucus sessions) about their willingness to stretch for a settlement. Those admissions rarely occur in direct bilateral negotiations, but they are a key part of why mediations can be so successful.

(3) Mediation allows the parties to talk directly to each other about the impact(s) of their dispute.

Each side learns something of value when hearing the other side speak directly to them.

Acknowledgment of responsibility and apology for injury caused can contribute in intangible but important ways to the ultimate settlement. Those statements simply cannot take place in the adversarial atmosphere of most cases.

Even in commercial business cases, the participants often have personal and strong emotional reactions that affect their views of the case. A mediation can address those considerations far more constructively than litigation processes.

What are the benefits of mediation?

First, it often can resolve the dispute, and, in contrast to most litigation, in a way that satisfies both parties. Even if the mediation session does not end the dispute that day, it often sets the framework for follow-up discussions that do reach settlement soon after the mediation. Second, mediation is inexpensive and can be scheduled rather quickly when the parties are ready for it. It offers a relatively low-risk exploration of settlement in a setting where the expectations for success are relatively high. Often, concessions are made during the course of the day which bring the parties far closer to each other than either side might have expected at the outset. Even in those cases that don't settle, the process helps both sides understand why they take different views of the case and the risks they face if they take the case to trial.

How much will the mediation cost?

The time commitment may vary a bit from case to case depending on complexity, but the costs of most mediations fall in a range between $1,000 and $1,200 per party. That covers the mediator's preparation time in reviewing parties' submissions and the time spent in the mediation session itself. Special budgetary considerations should be discussed with the mediator at the time of the engagement. For parties who have not established prior credit history, an advance will be requested to confirm the engagement.

How soon can a session be scheduled?

As soon as the parties can agree on a date that is open on the mediator's calendar, the session can be held. Usually the session is scheduled and completed within 6- 8 weeks of the initial contact. With email exchanges of information, the scheduling can be handled very efficiently within a few days.

Who can request the mediation?

Either side (usually either side's lawyer) can make the initial request. It is customary for the parties to have agreed on the selection of the mediator (at least tentatively; i.e., to have considered his suitability for the case) before making that contact. The initial contact is to briefly identify the case, the subject matter of the dispute, the parties and their counsel. The mediator will send an engagement letter to each participant confirming the terms of the mediation service and the date for the session. Each party should sign and return a copy, along with the requested advance deposit. One week before the session, each party is asked to submit a mediation memo to the mediator, sufficient to allow him to understand the legal and factual issues in dispute. Those submissions sometimes include key exhibits or expert reports. If briefs have been filed in the case (for example, on summary judgment or other motions), copies of those are helpful in explaining the party's position on controlling questions of law. Although the parties may choose to send a copy of their submission to the other side, they may send some material (or all) for the private review of the mediator alone.

Who should participate in the mediation session?

The parties who have a direct interest in the outcome of the case should attend. Other persons who have the power and authority to agree to terms of settlement, such as an insurance claims representative, should also attend. If a party or decision-maker cannot attend in person, the other party should agree to the alternate arrangement. Participation by telephone, or participation by periodic telephone contacts, is less satisfactory and inhibits full understanding and participation in the dynamics of the discussion during the day.

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