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Basic Mediation Information
Mediation is a forum in which an impartial person, the mediator, facilitates communication between parties to promote reconciliation, settlement, or understanding among them. A mediator may not impose his own judgment on the issues for that of the parties. Mediation is the familiar negotiation process with the addition of an impartial third party who at a definite time and place, with all parties present, attempts to assist the parties and attorneys in arriving at an agreeable settlement. Mediation can occur at any stage of a dispute, that is, before suit is filed but before discovery is accomplished, at any stage during discovery, and even after trial on the merits and judgment including while the case is on appeal.
In many states, mediation is now provided for by statute and the court is given authority to require the parties to engage in the mediation process. In analyzing the differences between litigation and mediation, it is helpful to understand that, while still premised on liability, there is an additional focus on the "needs" of the parties, that is, those interests that, once recognized, can serve as an additional basis for resolution of the dispute.
Initiation of the Mediation Process
Whether the court orders a pending case to mediation or whether it is initiated by the parties voluntarily, a mediator must be selected, a date, time and place agreed upon, the mediator's fee stipulated or agreed to, and arrangements made for the clients to attend the mediation. If lawyers are involved, the lawyers must then prepare to ably represent their clients in the mediation process.
Preparation for Mediation
Theoretically, a client represented by counsel need not actively participate and would simply be communicating with counsel in private. However, some mediators strive to involve the clients in discussion in the private caucuses, a practice which most lawyers do not object to, provided they have prepared their client in advance of this happenstance. Participation by the client does have a therapeutic effect in that it allows the client to get the matter off his chest, do some "venting." Of course, the mediator would not directly ask a client what his "bottom line" is or engage the client in making offers or rejections, but rather the participation by the client would be more on a fact-finding basis and allowing the client to vent.
Again, the client must be prepared in advance for this eventuality and the attorney should be acutely aware in advance of any problem areas that might arise. It is suggested that a specific pre-mediation conference be held with the client in the lawyer's office and everything from dress, demeanor, settlement strategy and the evaluation of the case preparatory to mediation should be discussed. Preparing the client for mediation should be treated as importantly as preparing the client for deposition or for trial.
Essential Requirements for Mediation
It is generally recognized that the three most important requirements for mediation are that the parties and their attorneys agree to make a good-faith effort to arrive at a settlement, that the clients themselves be present (and in the case of a corporation, a decision-maker be present); and that adequate time be set aside for the process. Many cases can be adequately mediated in a couple of hours, others in half a day, and still others require at least a full day. While one should never allow an extended mediation to wear down one's client, it is sometimes helpful to keep the process going while the momentum is up and allow the mediation to continue into the evening hours.
The Role of the Mediator
A good, experienced and well-trained mediator can make the difference between arriving at a settlement and not arriving at a settlement. Experience and maturity seem to be even more important than training, and subject-matter knowledge, while not absolutely essential, is always helpful. The mark of a good mediator is one who can keep the process going, keep the momentum up and be able to get around what, at times, seem like impossible impasses. There must, of necessity, be a spirit of optimism on the part of the mediator and he or she, without misleading the participants into false optimism, must infect the parties with a similar spirit of optimism.
When Mediation Should Occur
Despite the benefits of mediation, if it occurs too early in the life of the case, the parties and the attorneys will simply not have an adequate opportunity to investigate the relative merits of the case and to have arrived at an evaluation. When early mediation is anticipated and is to be attempted, as much information as possible must be gathered and, if need be, the willingness to participate in mediation must be conditioned on being provided certain information that you would ultimately get during the discovery process, so that an adequate evaluation can be made and the likelihood of a successful mediation enhanced.
Selecting a Mediator
What constitutes a good mediator has been discussed above, but the problem is in finding the right person. A good experience with a mediator will lead you back to that mediator again even in a different type of case. Reputation as a mediator, if well earned, should be looked at in the selection process.
Fees of Mediators
Every practicing mediator has a fee schedule which will be sent upon request and is generally based on a hourly or daily rate with the fee ties to both the number of parties involved and the amount in controversy.
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