Mediation is one type of alternative dispute resolution (ADR) that is available to parties in a legal dispute. Essentially, mediation is a negotiation of the matter facilitated by a third-party neutral that is also an attorney but not involved in the case outside of mediation. Unlike arbitration, which is a method of ADR that is similar to trial, mediation does not involve any decision making by the mediator. Instead, he or she helps the parties come to a reasonable agreement on the matter. ADR procedures can be initiated by the parties involved in the case or, alternatively, may be compelled by the courts, legislation or the terms of the contract in dispute.
Why Mediate Your Case?
Mediation is typically a voluntary process that is used when opposing parties of a case cannot (or will not) resolve the dispute. Mediation is generally a short-term, structured, and hands-on process to try to amicably resolve the dispute.
The process of mediation is often considered faster, less expensive, and procedurally simpler than formal litigation. Mediation gives the parties the opportunity to focus on the underlying factors of the case at hand, including what caused the dispute, rather than just the legal issues. Mediation does not focus on fault or the facts. Rather, the focus of mediation is to figure out how to resolve the issue. For this reason, a party seeking vindication or a determination of liability will not be satisfied with the process. A party that is hopeful in resolving the matter and moving on can greatly benefit from mediation.
Things to Consider
There are several things that need to be considered if you are engaging in mediation on behalf of your client:
- Prepare Your Legal Strategy: Remember that during mediation you are not speaking to the neutral but, rather, to the other side. Be prepared to present your case in a forceful yet respectful manner as well as to respond to objections and questions about the case. Ensure all key points are included in your opening statement;
- Make Sure All Parties With Authority are Present: It can be extremely frustrating and inefficient to conduct mediation to only discover a key person vital to settlement is not present. Key people include attorneys for both parties, the clients themselves, and a representative of any liable company that has adequate authority to settle all claims and interests;
- Keep a Positive Attitude: Do not be self-defeating but, rather, have a studied judgment as to a reasonable range of settlement values based on the facts and law applicable to the case. Remember, your aim is to get the best possible result for your client which sometimes, but not always, may mean settling the matter;
- Allow for More Time than You Think You Need: The attorneys involved should not have to leave mediation early due to another commitment. The rule of thumb is for counsel to set aside the entirety of the day for more serious cases. Counsel and mediator should stay as long as necessary to reach a full agreement;
- Address All Present and Future Issues in the Agreement: If and when you do reach a settlement, make sure the agreement, which may already be pre-drafted by one side, addresses all of your clients issues. These should include present and future ones that may directly or indirectly be affected by the settlement at hand.
Contact a Skilled Attorney
If you or someone you know is in a legal dispute or is about to get involved in one, contact a skilled attorney to handle your matter. If you are interested in alternative dispute resolution methods, consider mediation with an attorney and find a knowledgeable mediator in your area.