Most legal disputes can be mediated. In mediation a third party neutral meets with the parties and their counsel and tries to settle the dispute out of court. For example, business partners might choose mediation to work out an agreement to divide their business and define their future territory. Because mediation is flexible and the solutions to disputes can be creative, mediation is a better way to resolve disputes where parties are going to have to continue to have a relationship in the long-term or when the matter is complex and part of the relief you are seeking is not monetary. Business mediation may include disputes involving contracts, leases, business ownership, and employment.
Typical mediation cases are usually resolved after a day. Cases with multiple parties often last longer and the more zeros at stake in the dispute the longer the mediation will last. Major business disputes involving lots of money or complex contracts may last several days or more. Some matters may require multiple mediation sessions spread over several weeks or months.
Mediation is different than arbitration and court litigation before a judge. A mediator normally has no authority to render a decision. Rather, it is up to the parties to try and reach a resolution and settle the matter. While you do not go through the typical case hearing process, there is still strategy and stages in mediation. A typical mediation involves the following stages.
Pre-Mediation Statement: Prior to attending the mediation, attorneys will submit statements to the mediator educating the mediator about the dispute and setting the stage for the day of mediation. Some mediation statements will include exhibits and legal briefs.
Mediator's Opening Statement: After the parties are seated at a conference table, the mediator introduces everyone, explains the goals and rules of the mediation, has the parties sign a statement, and encourages each side to work cooperatively toward a settlement.
Opening Statements: Each party is invited to describe what the dispute is about and what they are seeking at the mediation. A party may elect to waive this opportunity to avoid inflaming the other side.
Joint Discussion: The mediator may try to get the parties talking directly about the dispute.
Private Caucuses: The private caucus is a chance for each party to meet privately with the mediator in a separate conference room to discuss the strengths and weaknesses of his or her position, and settlement demands or offers. The mediator may caucus with each side just once or go back and forth as needed. These meetings are considered the meat of mediation.
Joint Negotiation: After caucuses, the mediator may bring the parties back together to negotiate directly. In multiple party cases, certain parties may join together for discussion.
Closing: This is the end of the mediation. If an agreement has been reached, the mediator may work with the attorneys to put its main provisions in writing on the spot. The mediator may ask each side to sign the written summary of agreement. If no agreement was reached, the mediator will review whatever progress was made and advise on options, such as meeting again later, going to arbitration, or going to court.
Settlement Agreement: After the mediation counsel will usually negotiate the finer points of the settlement agreement and then have their client sign the legally binding contract. If an action was already filed in court or arbitration, it will then be dismissed.
Why Mediate? In mediation, the parties will try to work out a solution to your own dispute. Unless you freely agree, there will be no final resolution. If the parties are successful at mediation, the dispute will be over and the parties can get back to business. Other legal precedents or the emotions of a jury will not dictate the solution. If the dispute has undiscovered or undisclosed issues, mediation may help discover them. People who attend mediation also tend to be more relaxed and open to compromise than when they are in a formal courtroom. Finally, if you reach an agreement the parties can usually agree to confidentiality as part of the terms of settlement so your case does not become part of the public record. Ultimately, other than the time it takes to prepare and attend and the cost of the attorney fees and mediator, mediation is usually a great option to alternative dispute resolution. You can walk away if you are not making any progress and still proceed with your formal action.
Goosmann Law is available to help clients resolve disputes in alternative dispute resolution proceedings including mediation. We don’t just respond to your legal needs, we anticipate them. Goosmann Law: Strategic thinking on your side. Contact Attorney Jeana Goosmann today.