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What Is Mediation and How Does It Work?
What You Need to Know

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It may be expensive to file a civil lawsuit. With the aid of a neutral third party, two or more parties can use mediation to reach an amicable resolution without resorting to costly litigation. Both parties concur that they need assistance to resolve the conflict even though negotiations have reached a standstill. 

Over the past fifteen years of working as a counselor on mediation procedures, I’ve gathered enough information and expertise to share all you need to know about this process.

Summary of the Key Findings

  • The mediator cannot decide because they are not a judge.
  • All parties must agree on a workable solution in order for the mediation to succeed.
  • Although less formal than a trial or arbitration, mediation has definite steps.

What is Mediation?

Three business people walking and talkingMediation is when a third party is present in resolving a dispute between two or more people, businesses, or other organizations [1].

The mediation process entails selecting a mediator, a neutral third person who is independent and impartial, to assist the parties in discussing their differences, negotiating, and arriving at a mutually beneficial solution during a mediation session. 

You can mediate before filing a lawsuit or while one is already pending.

Patient, persistent, and sensible individuals make good mediators. They have a toolbox of negotiation strategies, an understanding how people interact, and the ability to listen, articulate, and restate. 

A mediator's job is to be a facilitator. 

The mediator cannot resolve the conflict. While the mediator works through the mediation procedure, the parties will devise a resolution during the mediation or joint session.

While the mediator may be an attorney in many jurisdictions, they are not permitted to practice law while acting in that capacity. 

The parties, however, might benefit from the mediator's subject-matter expertise if they're willing to consider a neutral case evaluation or when formulating and framing the mediated agreement.

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What is the Role of a Mediator?

Business people shaking hands

The role of a mediator is to assist the disputants in resolving the issue using a procedure that encourages each side to work things out. The mediator is not a judge; therefore, they cannot render a verdict.

For example, they may

  • Air conflicts
  • Identify the case's advantages and disadvantages.
  • Recognize that the hallmark of a fair settlement is to accept less than anticipated
  • Choose workable settlement terms

The main objective of a mediation experience is for all parties to agree on a solution they can rely on, either during separate or private sessions. 

Nothing will be settled unless both parties agree to it because the mediator lacks the power to impose a decision.

The process puts less emphasis on finding the truth or enforcing laws and more on finding practical solutions to problems, such as accounting for the cost of litigation.

Types of Problems Solved Through Mediation

Coworkers doing paperwork together

Anyone can suggest using a mediation service to resolve a conflict. Conflicts between neighbors or other private matters can be resolved amicably within a few hours without filing a civil lawsuit.

Sometimes a court order might demand some informal dispute resolution following the start of litigation.

Cases that are ready for mediation include the following:

  • Personal injury legal issues
  • Small-business conflict
  • A family law matter
  • Real estate conflict
  • Breach of agreement

The case's complexity will determine how long it takes to solve the issue. A mediator will resolve reasonably simple cases in a half day.

The mediation session or joint session will last an entire day for more complex cases, with the negotiations continuing after the mediation is finished. 

At the end of this informal process, either party may file a lawsuit or keep pursuing the current case if the mediation doesn't result in a dispute resolution during that private session or private meetings.

Who Attends a Mediation?

Both sides' decision-makers attend a mediation. That encompasses a single plaintiff or a defendant. If your business or organization is a party to a lawsuit, someone who has the power to approve a settlement should be present. 

You should at the very least have access to your insurance party during the meeting if you are working with an insurance company representing you in the lawsuit.

What Takes Place During Mediation?

Three coworkers standing and talking to each otherMeetings between the parties, the mediator, and the neutral third party take place during mediation.

There is no one way to do this, but most sessions follow a basic structure.

This includes a description of the process, an introduction of the people in the room, and the signing of confidentiality agreements.

Generally, mediators will spend time with each side to discuss the case and settlement expectations and get the authority to convey offers or demands to the other side.

"Mediation is much less formal than going to court, but the conflict resolution process does involve distinct stages designed to lead to a mutually beneficial compromise."
- Cara O'Neill, Attorney
 

After the joint session, the mediator will place the other parties in separate rooms to discuss their next steps towards a settlement and reach an agreement.

There is no limit to the number of times you will meet in a private session in order for parties to reach an agreement. 

Either party can terminate the session anytime if they believe the settlement is not likely. The only exception is if you have a contract that requires a good faith attempt to resolve the dispute. In that case, you should expect to go through at least one or two private sessions.

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6 Stages of the Mediation Process

Coworkers passing paperwork

The multi-stage process of mediation is intended to produce outcomes. The mediation works in distinct stages, contributing to the system's high success rate. 

Mediation is less formal than a trial or arbitration, but there are distinct steps in the process.

The majority of mediations go like this:

Stage 1: The opening statement of the mediator. The mediator welcomes everyone, explains the mediation's objectives and ground rules, and urges all parties to cooperate with one another in order to reach a resolution for this dispute after the parties are seated at a table.

Stage 2: Opening arguments from both sides. Each party is asked to describe the dispute and its financial repercussions. The mediator may also consider broad suggestions for resolving the conflict. The other party may not speak during the speech.

Stage 3: Discussion among all parties. Depending on how receptive the participants are, the mediator helps by encouraging the parties to respond directly to the opening statements in an effort to clarify the issues.

Stage 4: Individual caucuses. Each party can speak in separate sessions with the mediator during the private caucus. There will be separate rooms for each side. With such information, the mediator will move between the two rooms to discuss each position's advantages and disadvantages and exchange offers. 

During the allotted time, the mediator continues the conversation as necessary. The process is built around these confidential meetings.

Stage 5: Joint negotiation. The mediator may have the option to bring the parties back together in a room to negotiate directly after caucuses, but this is unusual. 

The parties are typically not brought back together by the mediator until they reach an agreement and a settlement has been reached for the dispute or the mediation's allotted time has passed.

Stage 6: Closure. If the parties reach an agreement, the mediator will then put its main terms in writing and request that both parties sign the written agreement. 

Suppose the parties are unable to come to an agreement. In that case, the mediator will help the parties in deciding whether it would be beneficial to meet again later or conduct further discussions over the phone.

FAQs

What Does Mediation Cost?

Mediation may cost between $500 and $1500 per party. 

Does Mediation Do Anything?

Yes, mediation does help to get any disagreements and conflicts resolved before one goes to court. 

How Long Does the Process of Mediation Take?

The process of mediation can take as long as the parties of a lawsuit agree to a settlement. Some may take a few hours, and others might take a day.

Can You Be Forced To Mediate?

No, you can not be forced to mediate because it is up to the parties of a lawsuit. 

What If No Settlement Is Reached During Mediation?

If no settlement is reached during mediation, then the case becomes a lawsuit in the trial court.

Are You in Need to Get Mediation?

If you are looking for legal counsel regarding a mediation procedure, then contact Schmidt & Clark

You will have a free one-to-one consultation session with our best litigators that will allow you to make an informed decision about mediating or other alternative dispute resolution methods based on your particular situation. 


References:

  1. https://www.law.cornell.edu/wex/mediation

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