The Mediation Room

Mediation is a voluntary, non-binding process during which an impartial third-party, called a "mediator" or a "neutral," facilitates negotiations between the parties and assists them to make pragmatic, informed decisions to resolve the issues before them.
The mediator does not render any decisions on the merits of the dispute; instead, mediation helps the parties:
assess the perceived strengths and weaknesses of their position;
examine their needs and interests;
discuss settlement options; and
finalize a settlement agreement, if settlement is reached.

Because the parties themselves control the outcome, any resolution will be voluntary and mutually agreeable to all. The mediation process therefore often results in unique and creative solutions that allow each party to walk away believing that their objectives have been met.

Why Choose Mediation?
Mediation often offers several significant advantages over the traditional litigation process:
Control - Mediation affords the parties their only real chance to control the outcome of the litigation. The parties are only required to negotiate in good faith and only reach a resolution when all sides voluntarily agree to any proposed settlement. Because they are not formally bound by the strictures of the law, the parties are also free to discuss, and agree to, creative solutions and remedies that a court would not be able to grant. After reaching a settlement at mediation, each party should leave with the belief that they worked out a satisfactory solution. At a trial or arbitration, the judge, jury or arbitrator will ultimately make a decision as to the merits of each side's position, and render only such judgment and award as the law will allow. More often than not, a judicial award leaves one party feeling completely dissatisfied.
Confidentiality - Mediation is a strictly confidential process. This has two benefits to the parties. First, the matters discussed in a mediation, cannot be introduced as evidence or otherwise used in any subsequent legal proceeding. Free from the concern that their willingness to compromise might be used against them later, the parties can discuss candidly the strengths and weaknesses of their position, their underlying interests, and options for settlement. Second, the confidentiality of the process is especially useful if the subject matter of the suit is particularly sensitive. During litigation, the matters revealed in depositions, hearings and at trial, are typically a matter of public record.
Communication - A significant number of disputes involve parties with a preexisting and sometimes on-going relationship - whether personal or business. Litigation tends to polarize the parties, entrenching their positions and shutting down the communication process. With the guidance of the mediator, the parties are encouraged to communicate in a more effective manner. This may lessen the tension and misunderstanding that previously impeded negotiations between the parties.
Cost - The professional fees charged by the mediator are considerably less than the direct and indirect costs incurred during an average civil case. In addition to direct costs such as legal fees, witness fees, travel and document reproduction costs (which typically total in the tens of thousands of dollars), the parties will also incur the indirect costs caused by the interruption of their business (or personal lives) while they or their employees attend depositions, hearings or meetings with their attorneys. The U.S. Attorney's study found that attorneys that mediated their cases saved 89 hours in attorney and paralegal time and over $10,000 in costs compared to taking the matter to conclusion at trial.
Time - A successful mediation results in a much shorter process than litigation. A five-year study on the use of mediation by the U.S. Attorney's office showed that the average mediation lasted only seven hours, and resulted in a settlement in 63% of all cases. By comparison, it will likely take over two years for the average general civil litigation case to reach a conclusion at trial. Mediation provides an opportunity for the litigants to resolve their dispute in a timelier manner, allowing them to get on with their personal or business lives.
Flexibility - In the event the parties do not reach a solution during the mediation, they are free to continue the dialogue at a later date, or continue forward with the litigation process. The process is only binding if the parties reach an agreement.

Because the parties themselves control the outcome, any resolution will be voluntary and mutually agreeable to all. The mediation process therefore often results in unique and creative solutions that allow each party to walk away believing that their objectives have been met.

What Makes a Successful Mediation?
It is difficult to determine whether a mediation is "successful" merely by results. Most would consider a mediation that results in a settlement successful. Sometimes, however, the parties may decide that the legal issues involved are best left to the court to decide. That does not mean the mediation was "unsuccessful." What makes both scenarios examples of successful mediation is that the parties engaged in meaningful discussions, undertook some critical analysis of both sides of the dispute and reached an informed decision as to how they wished to proceed.

Parties that want to maximize their chances for a "successful" result should come prepared to do the following:
Engage in candid, honest discussions about the strengths and weaknesses of their case - Often, after living with a dispute for so long, parties (and their counsel) become increasingly convinced of the strength of their case. The parties must be willing to think critically about their position, and view their case as though looking at it through the eyes of the other party or the jury.
Remain flexible and consider alternative solutions to the dispute - In most cases, a court of law is only able to award monetary damages. At mediation, the parties can craft original, creative, and imaginative solutions that meet their needs and interests, but would otherwise be outside the court’s range of legal remedies.
Set aside sufficient time for the mediation and remain patient - While mediation is considerably faster relative to the months or years a case may take to come to trial, the process may take several hours. The parties should set aside a full day to participate in the mediation and remain patient while the mediator facilitates the discussions.
Bring someone with full authority to settle the matter - It is very important that all of the persons with decision-making authority attend the mediation. Not having a necessary decision maker at the table limits the chance of settlement. It may also appear that that party is not negotiating in good faith.

Mediation may not be right for every case and requires both parties to make a commitment to the process of mediation and display a willingness to compromise to be successful.

Thank to CKAMediation to provide this valuable insight into the basics of mediation.
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