What is mediation?

• Mediation is an informal process where an impartial third party helps disputing parties to find mutually satisfactory solutions to their differences. Mediation can resolve disputes quickly and satisfactorily, without the expense and delay of formal investigation and litigation.
  
  Mediation proceedings are confidential and voluntary for all parties. Mediation typically involves one or more meetings between the disputing parties and the mediator. It may also involve one or more confidential sessions between individual parties and the mediator.
  
  Mediation is neither therapy nor a "day in court." Rather, mediation should provide a safe environment for the parties to air their differences and reach a mutually agreeable resolution. Mediators are NOT judges. Their role is to manage the process through which parties resolve their conflict, not to decide how the conflict should be resolved. They do this by assuring the fairness of the mediation process, facilitating communication, and maintaining the balance of power between the parties.
  
  Representation by an attorney is permitted, but not required, in mediation. While mediators may not give legal advice or interpret the law, they will refer parties to impartial outside experts within the disability and legal communities when questions or issues needing clarification arise.
  
  A successful mediation results in a binding agreement between the parties. If mediation is unsuccessful and an agreement can not be reached, parties may still pursue all legal remedies including private lawsuits.
   

What types of disputes can be resolved through mediation?

• All kinds. Mediation has been successfully used for small claims disputes, commercial and business disputes, construction issues, employee grievances, environmental claims, professional malpractice allegations, product liability claims, insurance coverage disputes, real estate disputes, partnership dissolutions, divorce, family, and adult guardianship/elderly care disputes, Gay/Lesbian, domestic relations matters, and workers' compensation claims.
  It makes no difference whether liability is admitted or hotly contested, whether the case is in litigation or not yet filed, or whether the dispute involves a few thousand dollars or many millions of dollars or issues other than money--mediation has proven effective in all of these situations.

What are the benefits of mediation?

• Settle disputes now. Almost every case will settle prior to trial. So the real issue is not if a case will settle, but when. A mediation session has the effect of getting settlement negotiations focused much more quickly than if the case proceeds to trial. Proposing mediation is an excellent way to get settlement discussions moving in the right direction and away from court.
   
• Save money. An early settlement naturally saves litigation expenses and other costs related to managing the dispute.
   
• Maintain control. Mediation differs from arbitration or trial because the mediator does not make a decision or force any party to accept a settlement. When you agree to mediate a dispute, you are only agreeing to attend the mediation session and participate in a good faith effort to settle the matter. Consequently, you are always in full control of the outcome.
   
• Informally explore settlement options. Because of the confidential nature of private meetings, often referred to as 'caucuses,' the mediator can explore settlement options without exposing your final position. This can remove the "posturing" that takes place during traditional negotiations.
   
• Organize multiple party negotiations. The mediator can play a major role in simply organizing the discussions. The mediator can work closely, and confidentially, with each side to explore settlement possibilities and put a settlement package together.
   
• Preserve continuing relationships. Mediation is particularly appropriate in situations in which the disputing parties will be working together after the dispute is resolved. Some examples include family relationships, construction projects, commercial leases, partnerships, business suppliers, and employment relationships. Mediation allows the parties to stay on the best terms possible by doing everything they can to settle their dispute as quickly and easily as possible.
   

How is a mediation case started?

• Typically, one party to a dispute will contact our office to initiate mediation scheduling efforts or propose mediation to the other parties. As a general rule, the parties have discussed the possibility of mediation prior to contacting our office, although it is always an option to have First Choice Mediation initiate the contact about mediation. In some situations, First Choice Mediation, as an impartial neutral, might have a greater chance of gaining the parties' participation in mediation. Because mediation is such a sensible process, we are usually successful at convincing everyone to participate.
   

What takes place at the mediation session?

• All parties to a dispute will be present at the mediation session. For example, participants in a typical personal injury case usually include the plaintiff and the plaintiff's counsel, an insurance company representative, possibly a defense attorney, and the mediator. In a commercial case, the owners and/or managers would attend, along with their attorneys.
   
• All parties, representatives and the mediator first meet in a joint meeting format. After introductory remarks by the mediator and the signing of the Agreement to Mediate (if not already signed earlier), each party is given the opportunity to explain its position in the presence of the other participants. These short and informal opening statements, typically no more than ten to twenty minutes long, are a starting point for the mediator to gain an understanding of the case.
   
• After the joint session, the mediator may meet with each side individually. These separate meetings, called caucuses, are confidential. In each caucus, the mediator will explore possible settlements. It is common for the mediator to go back and forth between the parties for a number of private meetings, just as the mediator may bring the parties back together for joint discussions. If the mediation results in a settlement, the parties may choose to draft a formal settlement agreement.
   

What if the case doesn't settle?
 

• Most cases will settle at the mediation session or shortly thereafter. If a settlement is not reached at the mediation session, the mediator may continue the discussions by telephone, and in some cases the parties may elect to have a second session. If a full settlement is not reached, the parties are free to pursue other options such as arbitration or litigation.
   

How to prepare for a mediation session

• Preparing for a mediation session is much easier than preparing for an arbitration or a trial:
   
  1. There are no pre-session pleadings required, although in a more complex case the parties may wish to furnish the mediator with a short brief or explanatory documents that were prepared for another purpose.
      
  2. Prior to the mediation session, all parties should have obtained sufficient information to make settlement decisions. It is common for FIRST CHOICE MEDIATION and/or the mediator to help with informal information exchanges. Please make FIRST CHOICE MEDIATION or the other parties aware of any information you need prior to the mediation session.
      
  3. A critical element of a successful mediation is that each side must be represented by a person with adequate authority to settle the case. This typically means that clients, business managers, etc., should attend.
      
  4. A ten to twenty minute opening statement should be prepared. Keep in mind that this is an excellent opportunity to talk directly to the other side. Representatives should consider whether their clients should participate in this presentation (e.g., how the accident or dispute has affected them).
      
  5. Obviously, you need to be prepared to discuss the details of your case. Have quick access to needed information.

How much will mediation cost?

• FIRST CHOICE MEDIATION charges a basic administrative fee and hourly or per diem fees for the mediator's time, which will be pre-collected at the time of scheduling or billed after the mediation is concluded.
   
• In many cases, the parties agree to divide the mediation costs, although it is not uncommon for one party to pay the entire cost. There must be a clear fee agreement prior to the mediation session taking place.
   

How is mediation different from arbitration and settlement conferences?

• Arbitration involves the presentation of evidence to an arbitrator for a legally binding decision. Arbitration can be effective, but it is generally more time consuming and expensive than mediation, plus the parties give up control of the outcome (although high-low agreements can be used to provide a limited range for the decision).
   
• In a judicial settlement conference, parties submit informal evidence to a judge for an advisory decision. However, any time an outside party is rendering an opinion, particularly about case value, there is a risk that one party will strongly disagree with the opinion and the other party will be locked in to a settlement at that figure. This can actually impair further settlement efforts. Remember that almost every case settles anyway, so the role of the neutral should be to help parties move toward settlement. For this reason, mediation is often preferred to arbitration or settlement conferences.