Mediation is a private, consensual process to aid parties resolve conflict with the help of a neutral facilitator.
The parties are in control of the process and the decision making, unlike trial or arbitration. The mediator is there solely to help the parties find their own solution. There are no courtroom procedures in effect, so mediation is usually substantially less expensive and less emotionally taxing than litigation.
Because mediation is party-driven, it is often possible to craft solutions that would not be available through a court, including settling multiple disputes in different court systems or issues that are not the subject of legal rights.
Prior to the first meeting, the mediator will usually be in touch with the parties and/or their counsel to get an understanding of the issues involved, to determine who the decision makers are and to assure their presence at the mediation, to encourage the preparation and exchange of written statements and documents explaining the problem from each party’s viewpoint, and to initiate the preparation of a confidentiality agreement to be signed at the opening session.
- Opening Session
The Mediator will explain the process to those participants who have not previously participated in a mediation, suggest certain ground-rules for the parties to adopt and encourage the signing of a confidentiality agreement.
- Joint Session
The Mediator will invite each side to the dispute – the parties, representatives, their counsel and others present to tell their story or present their best case, while encouraging the other side to listen with an open mind. The mediator will then summarize what has been said and request that the speakers correct or supplement the summary if necessary.
The participants and the mediator then develop an agenda, including questions to be answered and problems to be solved. At this point the parties may continue in joint session to work on solutions with the help of the mediator or break in separate sessions, called a private caucus.
- Private Caucus
Parties sometimes feel more comfortable discussing certain concerns or ideas privately with the mediator. These private sessions are confidential to the extent the parties wish. Often the parties will be encouraged to discuss the weaknesses as well as the strengths of their case and what they understand of their opponent’s case; what they believe are their best and worst alternatives to a negotiated resolution; and a clarification of the parties’ needs and interests.
With the party’s approval, the mediator will convey information from one group to another and may encourage the parties to resume speaking directly with one another in joint session. The mediator’s role is to encourage and facilitate dialogue, assist the parties in understanding their real interests and differences and to work towards a mutually acceptable agreement.
The conflict can be resolved in less time than required for litigation.
- Less Expensive
Most mediations cost a fraction of the cost of litigation.
Mediation avoids public disclosure of private disputes. California law provides for confidentiality of all discussions in mediation. Further a Confidentiality Agreement signed by the parties can protect what is said later being used in court or otherwise disclosed.
- Scheduling is designed for the parties’ convenience, not the court’s.
- Can be utilized before, during or after litigation.
- Creative solutions are possible.
- Non-binding exploration of settlement possibilities is encouraged.
- Reduces Anxiety
- The parties retain control of the process.
- The focus is on interests rather than rights.
Because the process seeks win-win solutions in a mutually supportive atmosphere, it can avoid damaging on-going relationships, which often occurs through the adversary processes.
- It Works
The majority of mediations are successful in resolving issues between the parties, or, if not, in reducing the matters to be resolved by litigation. If agreement is not reached, the parties are free to arbitrate or proceed to trial.
When I had been an arbitrator for a number of years, I was introduced to mediation at an American Arbitration Association workshop in 1989 entitled Role of Executive/Leader/Manager as Negotiator, Mediator and Mediator/Arbitrator. At that time there was virtually no mediation going on in Boston where I was practicing law. My partners kept telling me that, based on my role as Managing Partner, I was a natural mediator: I had great listening skills and the ability to bring conflicting views into consensus. In addition, in my years as a business lawyer I strove to keep my clients out of litigation and to find ways to, whenever possible, to settle disputes creatively and amicably. I took formal mediation training required for mediator confidentiality in Massachusetts in early 1995 and began mediating for the American Arbitration Association in Boston shortly thereafter. After I moved to California in the fall of 1997, I found that mediation was a much more established mode of dispute resolution. I promptly took the Commercial Mediator Training required by the American Arbitration Association to remain a member of their mediator panel and, in 1999, I participated in the World Intellectual Property Organization’s Workshop for Mediators in Intellectual Property Disputes. In February 2000, I participated in Appellate Mediation Training sponsored by the California Court of Appeal, First Appellate Division and have been a member of that Court’s Appellate Mediation Panel since that time. I also completed Advanced Appellate Mediation Training for the Court in spring, 2003.
I have mediated disputes relating to software development, sales representation agreements, rights to a copyrighted product design, zoning violations, personal injury, attorney fees, alternative energy purchase agreements and real estate loans. While I generally favor a facilitative approach to mediation, when it seems appropriate to facilitate settlement, I will use an evaluative approach as well.
I am a Director of The Mediation Society of San Francisco and a member of the Dispute Resolution Section of the American Bar Association. I am a Past-President and a Director of the California Dispute Resolution Council and a panelist of the National Association of Distinguished Neutrals.
References and rates are available upon request.