Mediation is a form of alternative dispute resolution that encourages parties to resolve disagreements without going to trial. It is a non-judicial procedure that is facilitated by an independent, third-party mediator who assists the parties in reaching a mutually agreeable resolution or settlement of the issues in dispute. Because mediation is a non-judicial process, any agreement reached through mediation must be approved by the court.
Semita Legalis lead attorney David Breon is a certified mediator for family and civil cases. He offers virtual mediation services in matters involving:
Parties with a dispute, often with their lawyers, hire an independent, third-party mediator who works to bring the parties to a mutually satisfactory agreement. The mediator does not have the power to force either party to agree to anything, and the mediation process is voluntary and non-binding.
Many mediators are also attorneys, but when mediating a case the mediator does not represent either side. Instead, the mediator works to understand each side’s position, find potential areas of compromise, and ultimately help the parties to resolve their disagreement. Typically, the mediator will discuss the relative strengths and weaknesses of each party’s case, identify areas where the parties may agree, and help move the parties to an agreement.
Before disputing parties can reach an agreement, they must first agree on the parameters of the negotiation. This can include finding a suitable mediator, submitting information to the mediator before the mediation, and any special considerations that are unique to the parties. In many mediations, each side will submit a general overview of their side of the case, and any information that they believe supports their position. In some cases, mediation statements are shared with the other side, while in others they remain confidential.
On the day of the mediation, the mediator begins by making opening remarks to all parties in a joint session. The mediator will explain the process, describe what he can and cannot do, and identify the goals of the mediation.
After the mediator has made his introduction, each side will have a chance to explain their view of the case, what they believe they are entitled to, and the issues they believe need to be resolved.
Once each side has had an opportunity to provide their uninterrupted view of the case, the mediator may ask clarifying questions to better understand each party’s position.
When the opening remarks are concluded, the mediator might meet with each side privately in a caucus. Information discussed in the caucus remains confidential, and the mediator will not share information with the other side unless the party that shared it with the mediator agrees that it can be shared with the other side.
Keeping information confidential encourages the parties to candidly share their true concerns with the mediator, secure in the knowledge that the mediator will not share this information with the other side.
The mediator goes back and forth in a process known as “shuttle diplomacy,” consulting with each side, discussing the strengths and weaknesses of their respective cases, and exploring their core interests.
The confidential conversations with each side give the mediator insight into each party’s interests and allow the mediator to make proposals that are intended to bring the two sides closer together.
If the parties are able to come to an agreement, the mediator and the parties can create a written document that describes the terms of the agreement.
If the parties do not come to an agreement, the mediator will provide a summary of the negotiations and help the parties decide their next steps.
The mediator does not have the power to force the parties to agree to anything, and a mediator generally does not make recommendations. Instead, the mediator helps the parties see their dispute in a different light, make decisions based on an independent evaluation of their case, and bring the parties closer to a resolution.
Statements made during a mediation are not admissible as evidence in any subsequent legal proceeding, and the mediator cannot be called to testify about the mediation.
According to the American Arbitration Association, over 85% of mediations result in a resolution.
Mediation is so successful because many negotiations will never take place without the assistance of a mediator. Without a professional mediator, many parties to a dispute are afraid to make a “reasonable” offer out of fear that the offer will be used as a starting point in the next round of negotiation, resulting in a situation in which a party is “negotiating against himself.” Mediation provides a safe environment where the mediator can control the flow of information, which results in productive discussions that can lead to thoughtful concessions and proposals.
Without mediation, many parties are more interested in posturing than trying to resolve their dispute. They use hard-bargaining tactics that emphasize the differences in their positions, rather than exploring areas of agreement that can create fertile ground for resolution.
But during the mediation, each party has a chance to educate the other side and understand where the other party is coming from. Each party can freely express their emotions, and the process of mediation helps create a more realistic evaluation of the strengths and weaknesses of each party’s case.
A mediator helps disputing parties set aside their differences and come to a resolution. A mediator can help facilitate communication, promote understanding, explore key issues, and keep the parties focused on getting to a resolution. A mediator can also help parties evaluate the potential outcome if they take their case to court or arbitration.
Semita Legalis offers mediation services to help guide our clients to a brighter future. Contact Semita Legalis today to discuss how we can help you resolve your dispute.