Mediation Info
What is Mediation?
Mediation is a process in which an impartial third party, the mediator, facilitates communication and negotiation to promote the parties’ voluntary decision-making that ideally leads to a complete resolution of disputes.
Role of the Mediator
A mediator serves as a neutral and impartial facilitator, guiding the process to improve communication between parties. Their role is to promote voluntary decision-making, provide input on the existing legal issues, and ensure that all participants have an equal opportunity to express their perspectives, before reaching a mutually acceptable resolution.
Goals of Mediation
The goals of mediation are to focus on the underlying interests of the parties rather than their positions, facilitate communications between factions (often with each party and their counsel in separate “caucuses”) and bring value to parties and counsel by increasing the range of possible solutions beyond traditional legal processes. Mediation seeks to foster a voluntary, self-determined resolution that can repair and restore relationships, allowing for continued business or collaboration between the parties or, alternatively, permitting the parties to have closure and move on with their lives and work.
Role of the Parties
In mediation, the parties are responsible to attend and participate meaningfully, with or without counsel, actively asserting and explaining their perspectives, and providing relevant documents, charts, or diagrams to support their positions. They must engage in active listening to understand the other parties’ positions. With the goal of preparing for a future without litigation, the parties must come to a mediation willing to compromise, at least to some extent, to buy their peace.
Role of Legal Counsel
In mediation, counsel’s initial role is to prepare their clients by discussing interests, priorities, and feelings and prepare for the mediation with excellent research and analysis of claims and defenses. Attorneys inform the mediator about the facts, evidence and legal arguments through briefs or pre-mediation conferences. They also assist in generating and evaluating options, advising their clients throughout the process, and preparing any necessary documents to facilitate a successful resolution. Attorneys must also come to a mediation willing to resolve the dispute, rather than simply posturing and presenting arguments in a manner that disrupts progress toward resolution.
Mediation Outcomes
The case will either be resolved completely in one mediation session, or it can be continued to another future session, on another day. Generally, a lengthy mediation allows the parties and counsel to make significant progress toward a resolution on a number of issues, even if settlement does not occur. In many cases, parties and counsel continue to retain the mediator after mediation, to continue to work as a neutral person who helps the parties think further about settlement up to and through a trial. When a case is settled, Karen will prepare a Memorandum of Understanding or help prepare a formal Settlement Agreement and Release, that is executed at the end of the mediation session. This enables parties to be confident in the process, regain peace of mind and, if necessary, enforce the settlement in court, if one party decides not to comply with its terms and conditions.
