FREQUENTLY ASKED QUESTIONS
WHAT IS MEDIATION?
Mediation is a voluntary process that is confidential and privileged, so anything that is said during a mediation cannot be used in courtroom proceedings. Litigation is about the past -- mediation is about the future: litigation is about something that happened in the past that the parties are now fighting about, whereas mediation is about resolving that dispute so that the parties can move toward a future without that conflict. The goal of the mediation process is not only to resolve the legal dispute, but to lay to rest the interpersonal or emotional conflicts that have arisen between the parties. Mediation preserves working and family relationships. The parties almost always spend significantly less time and money in mediation than they do if the case continues with litigation. Mediations are speedy, confidential, and fair.
WHY SHOULD I MEDIATE MY DISPUTE?
While some disputes must be litigated through to trial, approximately 90%, or more of cases resolve before trial. Mediation is an important process because it allows the parties to take control over the outcome of the case, allows them to avoid the uncertainties of trials and jury verdicts, and helps the parties avoid incurring further litigation costs and attorney fees.
HOW SHOULD WE PICK THE MEDIATOR?
Review the dynamics of your case and ask whether the likelihood of settlement will be increased if the mediator is a courtroom lawyer or a retired judge, male or female, evaluative or facilitative, or a general mediation practitioner as opposed to a mediator with a specialty. While most cases can be successfully handled by a skillful and experienced mediator, you should try to make sure the mediator and your case are a good match. Speaking with the mediator, reviewing the mediator's website and online materials, and asking your colleagues for their experience with that mediator can all aid in your decision.
WHO SHOULD HIRE AN ATTORNEY WHEN ENTERING INTO MEDIATION?
While you do not need to retain the services of an attorney to participate in mediation, it is advisable for each party to at least consult with an attorney about their case and have an attorney draft and/or review the final settlement agreement. Many attorneys are willing to represent a party in mediation on a limited basis, whereby the attorney agrees not to litigate the case and therefore will be more settlement-oriented.
WHO PAYS THE MEDIATOR?
Typically, the parties split the mediation cost in half, however sometimes one party offers to pay for the entire fee as a goodwill gesture toward settlement of the matter.
WHO SHOULD ATTEND MY MEDIATION?
All parties and decision-makers, including insurance representatives and/or risk managers, should attend the mediation. Having the right people at mediation significantly increases the likelihood of settlement, and is a sign of respect and interest in working together with the other side to resolve the case. Counsel should always inform their counterparts prior to the mediation if a decision-maker is unavailable to personally attend the mediation. In such a case, the absent decision-maker must be available via phone and/or email.
HOW IS MEDIATION INITIATED?
There are many ways that the mediation process can be initiated. In some cases, a judge in an ongoing litigation will order the parties to attend a mediation session and assign a mediator. Other times, the parties’ attorneys pick a few mediators and their clients then agree upon one. If a party to a dispute is not represented by counsel, they may find a mediator they like and either send the mediator’s information or CV to the other party with an invite to mediation. In certain cases, one side will contact a mediator directly and ask that mediator to establish contact with the other side.
WHEN WILL THE ACTUAL MEDIATION SESSION TAKE PLACE?
Ms. Paul will work with all parties to pick the most mutually convenient time for mediation. Generally mediations occur Monday through Friday during regular business hours, but Ms. Paul can be available evenings and weekends if necessary for one or more parties.
WHEN DOES MEDIATION OCCUR IN THE COURSE OF A CONFLICT?
Every lawsuit has a beginning, a middle, and an end. Mediation can be a pivotal point in the life a case because it permits the parties to choose the destiny of their case, i.e., whether the case is going to end, how it will end, when it will end, and under what conditions. The mediation process aims to resolve conflicts before critical mass is reached. The timing of a mediation depends on many factors, e.g., willingness of the parties, the complexity of the facts, the number of parties, status of discovery, strategy, trial dates, etc. There is no formula or schedule as to when a case should be mediated, however a case is ready for mediation when the parties have a firm grasp on the facts, the applicable law, and the relative strengths and weaknesses of not only their own case but that of their adversary.
WHERE ARE THE MEDIATIONS HELD?
Usually the mediation will be held at the office of one of the attorneys involved in the case, but Ms. Paul can arrange a neutral meeting space if needed. Mediations can also be conducted online via Skype or Zoom. Certain cases can effectively be mediated by phone calls, both separate and joint.