Written By: Joseph J. Nardulli
Q: What is Mediation?
A: In Mediation, a neutral third party acts as a mediator, whose role is to listen to both sides of a dispute and help the parties arrive at a mutually agreeable settlement. The mediator cannot force either side to a dispute to do anything. The parties themselves are in control of the terms of the settlement. In fact, the parties can end the Mediation without reaching a settlement.
Q: What is Arbitration?
A: In Arbitration, a neutral arbitrator hears evidence by way of the testimony of witnesses and in some cases reviews written documents introduced into evidence. The arbitrator essentially acts as a judge does in a non-jury trial, and makes a decision in favor of one side or the other. This decision is often called the Arbitrator’s Award. If the Arbitration is binding (i.e. all parties agree in advance that the award will be final), it can be presented to the Court and made a judgment of the court. There is generally no appeal from an Arbitration award. The parties who engage in Arbitration give up their right to a jury trial. Further, the amount of “discovery” that each side can engage in (i.e. depositions, interrogatories, etc.) is governed by the language of the Arbitration clause in the contract that is usually the subject of the Arbitration. In short, in Arbitration the parties relinquish control of the outcome to the arbitrator whose job is to hear evidence and to make the ultimate decision.
Q: Why should I consider Mediation?
A: Mediation is not appropriate for every case, but in many cases it offers the most efficient and cost-effective method of resolving disputes. The key factor in Mediation is that the parties and their attorneys are in control of the outcome of the Mediation. The goal of Mediation is a win-win negotiated settlement.
Q: How is Mediation conducted?
A: First, there is at least one joint session where the parties, their attorneys, and the mediator meet. During this joint session, the attorneys present their clients’ cases. Sometimes, the parties themselves want an opportunity to express their position in their own way, and most mediators will encourage this. After the joint session, the parties, with their attorneys, will separate and go to different rooms. This is when the “caucuses” begin. A caucus is when the mediator meets with each side alone, to explore with them, confidentially, how the case might settle. In particular, they explore what that party’s particular needs are, and what the strengths and weaknesses of that party’s position happen to be. The mediator “shuttles” between the two separate caucus rooms, for the purpose of bringing the two parties close enough together so that a settlement may be reached and an agreement signed that very day. This often requires creativity on the part of all involved — the mediator, the parties, and their lawyers. In addition to creativity, the participants must come to the Mediation with a sincere commitment to be flexible.
Q: Can the information that is revealed during the Mediation be used against me if the matter does not settle at the Mediation stage?
A: The answer is an unequivocal “no!” Under the Evidence Code, the statements made concerning the case cannot be used in future court proceeding or in Arbitration, and must be kept strictly confidential. All parties, attorneys, and the Mediator generally sign a Confidentiality Agreement to ensure that they all understand the importance of confidentiality so that the disputants can openly explore the issues, without fear that what is shared in mediation will compromise their case at trial or arbitration, if no settlement is reached.
Q: When should I consider Mediation?
A: Mediation should at least be considered in any civil case, before the cost of litigation becomes so great that it becomes an impediment to the settlement. The question of whether to participate in mediation may also be influenced by other factors, such as the desire of the parties to have a totally confidential settlement of their dispute. Since mediations are not conducted in a public courtroom, with a record that can be uncovered by persons who may have an interest in how the matter was resolved, mediation provides an opportunity to have a settlement where no one outside of the parties and their attorneys will ever know the outcome.
Q: How long does Mediation take?
A: The length of Mediation is dependent on the complexity of your case, the number of parties involved and to a large extent the amount of preparation the parties have undergone prior to the mediation. Well prepared parties make for a more efficient mediation – which generally equates into a savings of time in mediation.
Q: Are there cases that should never be resolved by Mediation?
A: There are civil cases that should not be mediated. These are primarily cases where a party wants to create some legal precedent in an area of the law. If a legal precedent is desired, then mediation would not be appropriate, as obviously no legal precedent can be set if the parties settle a case in a private manner.
Q: What is the role of an attorney in Mediation?
A: The attorney for a party in mediation must be skilled at being both an advocate for the client’s position and also a counselor as to not only the strengths but also the weaknesses of the client’s case. In the open session, especially the initial session of the mediation, the attorney is often called upon to make a “mini” opening statement, which outlines the client’s case. This often will be the first time that the other party has heard the opponent’s version of the case, and can be very powerful in setting the stage for settlement. However, in caucus the attorney must counsel his client on all aspects of the case, including the negative aspects, so that an intelligent settlement can be reached.