What is mediation?
Mediation is a voluntary, interactive process where a neutral, third party, trained to facilitate communications and with negotiation skills, helps all the parties try and reach a mutually acceptable resolution to their dispute. In litigation, the judge issues orders on what is to be done during the course of the case. The mediator has no reciprocal powers. In mediation, the parties, with the help of the mediator, work together and decide how to resolve the dispute.
The mediation discussions by the participants are confidential, based on California law. Statements made and documents presented in the mediation may not be used in any later proceeding. With litigation, many aspects of the case become public record. Court litigants have to virtually surrender all elements of privacy regarding their dispute. If the mediating parties are unable to reach an agreement, the mediation process gives them the chance to narrow the issues in the case should they later select litigation.
Mediation reduces costs to parties as it can eliminate the high expenses and fees associated with litigation. Exchange of information is voluntary. Mediation can consume far less time and expedite settlement. This results in additional costs savings by reducing attorney time. There is also the derivative benefit to the mediating parties as they are able to resolve their disagreement and reduce the stress from uncertainty and costs associated with litigation.
What Happens During A Mediation?
The mediator introduces the process and then invites each side to explain the conflict from their own perspective. This allows the mediator to better understand the dispute in order to ask questions designed to clarify the respective issues that need to be resolved. The parties are advised that the mediation process is entirely voluntary, and that they may elect to end discussions at any time. Guidelines for appropriate conduct are detailed, often consisting of not interrupting another person speaking, and being respectful to each others case perspective.
What is the Mediators Role?
The mediator is selected by the parties to act as a neutral facilitator to assist and guide them towards a case resolution. The mediator will not decide who is right or wrong in the dispute. The mediator will not compel the parties or force them into a settlement agreement.
A mediator’s technique and approach varies on a case by case basis. Commonly, the mediation will begin in a joint session with all parties present to discuss the issues face-to-face. The mediator’s role is to help maintain the parties focus on these issues during the entire course of the proceeding. The mediator will then hold private sessions with each side talking in greater detail about the respective positions of each party.
The mediator will use the private session forum to exchange messages between the parties, foster clarifications, carry questions and proposals to each side. The mediator also uses the private sessions to facilitate negotiations by transmitting offers and counteroffers between the parties. Throughout this process, the mediator must maintain confidentiality and neutrality, stay away from giving advice, and not force parties into settlement, while facilitating communications with the parties.
Should the parties be successful in reaching an agreement, the mediator can work with the parties to draft the terms and conditions of the settlement. In some cases the mediator’s role will continue after the scheduled mediation by providing help to complete the settlement agreement. Any agreement reached during the mediation is intended to be binding with to respect to the issues in dispute.
What happens if there is no settlement agreement?
The parties may end up unsuccessful in reaching an agreement, which many times then lead to the filing of a lawsuit. However, the mediation then is a learning process, and one unsuccessful attempt does not mean the dispute must result in a lawsuit being filed. If a lawsuit is filed after an initial mediation, the court can offer mediation again to be considered by the parties before any trial by judge or jury occurs.
What are the costs and time involved to participate in Mediation?
The mediator’s fee can range from as low as $100.00 per hour and be as high as $500.00 per hour and higher based on a daily rate. This fee is divided equally among the number of parties, unless another arrangement for payment is made. Where a lawsuit has been filed, the mediator’s fee may be paid by the court, depending on the amount in controversy and the county where the lawsuit is pending. The amount of time to conduct mediation is never set to a limited quantity. Many cases, depending upon the complexity of issues, may involve multiple sessions, with each session encompassing 6-8 hours. Some mediations can be completed in as few as 2-4 hours.
What is Arbitration?
Arbitration is another Alternative Dispute Resolution (ADR) process where the parties select an attorney or a retired judge to conduct a hearing. Witnesses are sworn in, and testimony is presented. Evidence can also be offered by way of documents and writings. The same rules of evidence admissibility in court are used during the arbitration hearing. Once the case is presented by all sides, a decision of the arbitrator is provided in order to decide the prevailing party on the issues of dispute. Although arbitrations resemble trials, they offer less formal procedures and the potential for abbreviated presentation of issues.
What are the advantages of arbitration?
Similar to mediation, arbitration as an alternative to litigation can allow for the saving of time and money to resolve a dispute. The parties can set limits on discovery and the issues to be decided by the arbitrator. These limitations can affect who will testify at the arbitration and what type of evidence will be allowed. The parties have more control of the arbitration process compared to court administered litigation, including where and when the hearing will be conducted. Monetary limits can also be set preventing an arbitration award from exceeding a certain value or assuring that a minimum monetary recovery is obtained.
Are there different types of arbitration?
A dispute can be arbitrated because of the terms of a contract agreement. This type of arbitration is usually recognized as binding, where no appeal of the arbitrator decision is allowed. By contrast, a non-binding arbitration allows the parties to seek some manner of appeal, often a request for a jury or judge trial. Non-binding arbitrations more often then not arise from a lawsuit that has been filed. Many times, non-binding arbitrations give the parties the chance to test their case and obtain a neutral evaluation of the merits. This method of arbitration can lead as well to negotiation for potential settlement instead of appeal.
What are the costs and time involved in conducting an arbitration?
The fee of the arbitrator is often times similar to that of a mediator. Arbitrators regularly charge $300.00 per hour and higher. These fees are shared equally by all sides, unless another arrangement is made. Since the parties are able to limit the potential number of witnesses and the breadth of testimony, they can usually set time limits on the length of the hearing. However, the amount of time necessary to complete the arbitration is dependent upon the complexity of the dispute.
By Paul Bielaczyc