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Mediation Inc: Creative Solutions for Disputes --
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What makes a dispute appropriate for mediation?
There’s hardly a case or dispute that is not appropriate for mediation as long as there is trust in, and commitment to the process.  In light of national statistics indicating that the great majority of cases are resolved by non-trial disposition, early intervention through alternative dispute resolution methods such as mediation makes more and more sense. If the participants want to be there, and recognize the advantages of a non-litigated resolution, the dispute is appropriate for mediation.  

Are certain disputes more amenable to mediation than others?
Complexity or simplicity of the dispute shouldn’t make a difference as to whether the case is right for mediation.  What is most important is a willingness of the parties to explore in good faith the possibilities of a resolution without continued litigation or conflict.

How does mediation differ from arbitration or other alternative dispute resolution methods?
Unlike an arbitrator, the mediator doesn’t make any conclusions or findings.  There is no result imposed on the parties.  Rather, the mediator assists the parties in self-determining the resolution and conclusion of the dispute.  The role is much more that of a guide and facilitator, than a judicial officer imposing a binding determination on the parties.

What is the right time to mediate?
There is no right or wrong time for a case to be mediated.  Some disputants and their representatives find it desirable to mediate a case after it has been in the legal process for a while; however, many cases are mediated early in the process with great success.  Likewise, some cases resolve very quickly in mediation while others take a longer time to resolve.  Once again, the key here is the willingness of the parties to conduct discussions and probe alternatives through a neutral. 

 To read more about timing and its role, see Timing and Its Impact.

When and where are mediation briefs appropriate?
A mediator is not a judge, and doesn't make critical rulings on the dispute; but knowledge is power and in the hands of the mediator information and knowledge may be vital in helping him or her help you in resolving the dispute.  This process is usually begun by pre-mediation conferences and mediation briefs that help a neutral get on top of the information curve.  Mediation briefs don't need to be long or fancy, but they should include all of the relevant pleadings, facts, defenses, exhibits, expert reports and other relevant history that you think will be important for consideration and participation.  You should also include a separate section on the law and its application to this case for consideration, along with relevant comments on extraordinary problems you may be facing in the dispute.

Who pays for the mediation?
It is customary for all participants to share equally in the cost of mediation.  This is because of several reasons.  One, it is important for all parties to be equally invested in the process. Two, there should never be an appearance that any one party might be favored by a mediator because that party is paying for the process.  Even so, there are many instances where parties waive this formality and allow a designated party or parties to pay for the mediation. This is done in limited instances and only after a complete and open consideration of the circumstances by all disputants.

Should the mediator have an expertise in the subject matter of the mediation?
Not necessarily.  Of the two forms of mediation, facilitative and evaluative, the former is by far the more widely used.  The professional mediator, even though he or she may not have an expertise in the area of mediation, usually relies to some degree on the expertise of the participants.  It’s my experience that expertise in mediation or facilitation skill should be the paramount concern.   For more information on this subject, see
Issues to Consider When Selecting a Mediator.

What should you look for when selecting a mediator?
In short, the primary criteria for selecting a mediator is whether that mediator will enhance the chances of resolving the dispute:  not such things as whether the mediator may have a bias or sympathy that favors a certain party or side.  There is often considerable sparring over the selection of a mediator, because participants traditionally maintain a litigational/adversarial role, even through the mediation process.  Those mediations that are most successful involve participants who are able to separate themselves from the traditional litigational strategies and roles, and immerse themselves entirely in the mediation mindset. 

How candid can I/should I be with a mediator?
Optimally there should be total candor with the mediator inasmuch as mediation is a totally confidential process.  The best mediators all share a reputation for their neutrality and ability to maintain confidentiality.  It is their stock-in-trade and the more information shared with the mediator, the better the skillful mediator will be prepared to help facilitate a resolution.

Won’t I be prejudiced by sharing certain information with the mediator?
Not if the mediation is conducted properly, which is the only way a good mediator knows how to do it.  If done very well, nobody is prejudiced and the case is resolved.  If done well, nobody will be prejudiced even though the case might not be resolved.  “Preventing harm to the participants” should be a mantra of the reputable mediator.

What are the mediator’s interests?
Resolution, plain and simple.  I tell participants in mediations that I conduct, that I bring a client to the table and that client is called RESOLUTION.  It is important for participants to understand this.

The mediator who has any other interest in the mediation simply shouldn’t be there.  Mediation experience tells us that having “a horse in the race” is something for the disputants, not for the mediator. It is part of the mediator’s job to wean the disputants from thinking otherwise and educating participants in the virtues of mutuality of interest in resolution.

Is mediation an adversarial proceeding?
Mediations I conduct are generally very informal in nature.  While there may be some portion of formal presentation or role playing, there’s usually relaxed and casual discussion that ensues. Mediation should be comfortable and non-adversarial. Individual discussion or “caucus” also takes place between the mediator and the various participants so that informality and a comfortable level of candor can be encouraged.

 




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