Mediation is a voluntary and confidential process in which the parties use a neutral facilitator to help them negotiate a consensual resolution of a dispute. All parties must agree to participate in the mediation and any settlement achieved will only become binding on the parties with their agreement. In this sense, mediation carries with it very little to no risk. Statements made during the mediation cannot be used against a party in a current or future lawsuit, even if the case does not settle.
Frequently Asked Questions
What are some of the most common questions regarding mediation?
In a lawsuit, the judge or jury hears each party's evidence and then makes a decision for the parties. Similarly, in an arbitration there is an arbitrator (often a retired judge) who hears the evidence and then makes a decision for the parties. In a mediation, the parties themselves decide whether and how the case will be resolved.
You are not required to have an attorney to participate in a mediation, although it is often helpful if you do. If one party has an attorney and the other does not, the unrepresented party may be at a significant disadvantage in the mediation. In a legal dispute, the applicable law and the strengths and weaknesses of the parties' respective positions are important factors for a party to consider when evaluating a settlement alternative. Without an attorney to provide guidance on the legal issues, a party may not be able to fully evaluate its options. Although mediators are often also attorneys, when an attorney serves as a mediator he or she is not acting as an attorney for any party, but instead serves as a neutral who cannot provide any party with legal advice.
A mediation brief is a written presentation of a party's case that is transmitted to the mediator (and often the other parties) prior to the commencement of the mediation. A good mediation brief is an extremely helpful tool to get the most out of a mediation. It allows each party an opportunity to set forth, in a relatively non-confrontational context, that party's most persuasive arguments. When the parties exchange their briefs, they have the advantage of communicating the strengths of their positions to the other side in advance of the mediation. The exchange of briefs can also provide valuable perspective and insight into the interests that underly each party's position.
If the parties wish to disclose information that they do not want to share with the other side, such as confidential information regarding a party's settlement objectives, most mediators will permit, and in fact encourage, separate confidential briefs for the mediator's eyes only communicating the private information.
As to the contents of the briefs, which may be submitted in the form of a letter, it is helpful if they contain or attach the following:
- a summary of the relevant facts;
- a summary of the legal issues related to the dispute;
- copies of any key documents, such as contracts or agreements, that are pertinent to the dispute;
- the history of the parties' prior settlement discussions, if any; and
- any other information that the party or parties believe would assist the mediator in understanding the issues and interests at stake and facilitating the resolution of their dispute.
Like the mediation process itself, the briefing requirements are flexible and can be adjusted to meet the needs of each particular matter.
There is no "cookie cutter" approach to mediation. The process for each mediation should be customized to reflect the nature of the dispute at hand and the parties to the mediation itself.
The actual process utilized can and should vary based on, among other things:
- the nature of the dispute;
- the relationship of the parties;
- the complexity of the issues; and
- the parties' specific needs.
Most mediations are completed in one half-day to full-day session.
Some mediations, particularly those involving multiple parties and complex issues, can involve a series of sessions.
Jeanne generally commences mediations with a short joint session during which she will briefly explain the process and the confidentiality requirements. All participants will sign a confidentiality agreement agreeing to keep the discussions at the mediation confidential.
Jeanne generally does not request that the parties or their counsel make a presentation during the joint session. This is in part because she will have encouraged the parties to exchange written briefs and will have fully familiarized herself with the parties' positions and issues in advance of the mediation. As such, unless the circumstances or the parties suggest that a different approach may be more beneficial in a particular case, Jeanne prefers to primarily utilize private sessions, or caucuses, during which she will engage in private discussions with each of the parties and their counsel.
During these sessions, Jeanne explores and tries to fully understand each party's position, interests, and goals. She will also use the private sessions to explore the strengths and weaknesses of each party's case and brainstorm settlement possibilities with the parties and their counsel. Ultimately, with the parties' express consent, Jeanne will facilitate the exchange of information and help the parties develop and communicate proposals for settling the case. If a settlement is reached, she will assist the parties with setting forth the material terms in a written agreement.
In an evaluative approach to mediation, the mediator will provide opinions as to the strengths and weaknesses of each side's position.
In a facilitative approach, the mediator focuses on assisting the parties with communication and structuring and guiding the negotiations, without offering opinions or evaluations of the case.
Jeanne, like most mediators, does not strictly adhere to one approach, but instead employs a combination of approaches depending on the dynamics of the specific mediation.
Of course, mediation is not the right choice for every dispute. For example, mediation is not a viable option unless all of the necessary parties have agreed to participate.
Mediation may not be a good choice where one of the parties wishes to resolve an issue that goes beyond the particular dispute, such as where a party is trying to establish binding precedent for future transactions or contract interpretation.
Sometimes, a case is simply not yet ripe for mediation because one or both of the parties need to gather information that is necessary to their decision-making process.