Mediation is one form of Alternative Dispute Resolution, or ADR. These methods are used as the alternatives to lawsuits or trials. In mediation, the parties and their attorneys meet with the mediator. The mediator is an independent, third party whose only job is to facilitate a settlement. The mediator does not make a decision, and can not give legal advice to either party. Rather, the mediator’s job is to help each party find ways to reach an agreement by understanding the risks involved in taking the dispute to a judge or jury and the rewards available with a settlement. The job also involves exploring different ways to meet the needs of both parties, in order to facilitate a compromise.
Mediation is favored by the Courts, since it reduces the number of trials required to complete cases. It is also highly successful and can result in significant financial savings for the parties when compared to the costs to trial as well as relieving the stress and emotions which many people experience with litigation and trial.
It is really a no-risk step in litigation – or even prior to the filing of a suit. Since the mediator does not make a decision or award, a party who doesn’t find an acceptable proposal at mediation simply does not enter into an agreement. The mediator can not be called to testify regarding what happened at the mediation, and will only report to the Court either that the case settled or it did not. The communications made during the mediation are confidential and are not admissible in trial if the mediation fails. Indeed, each party can even instruct the mediator to keep information shared with the mediator confidential from the other party.
Generally, mediations are conducted at the mediator’s office, or some other neutral location. Typically they are scheduled for either a half or a whole day, depending upon the number of issues involved and the time it is expected to take all parties to fully explore settlement. Sometimes mediation involves a joint meeting of the parties and their attorneys with the mediator; however, in many mediations the mediator meets only separately with party and their attorney.
If an agreement is reached, the mediator assists the attorneys in drafting a Mediated Settlement Agreement, containing the basic terms of the settlement. This agreement is usually filed with the Court, after which the attorneys will draft more detailed, formal documents and agreements to finalize the settlement and dispose of any pending litigation.
Especially in full-day mediations, you may want to take something to read or work on, as there will be some down time while the mediator is working with the other side.