MEDIATION CAN AND HAS WORKED!
There are 6 steps to a formal mediation; 1) introductory remarks, 2) statement of the problem by the parties, 3) information gathering time, 4) identification of the problems, 5) bargaining and generating options, and 6) reaching an agreement.
Introductory Remarks
The mediator will wait until both parties are present and then make introductions. The physical setting will be controlled so that no party feels threatened. Most mediators will ask that if children are present, they wait outside. The mediator will then give an opening statement. This outlines the role of the participants and demonstrates the mediator’s neutrality. Some mediators will make comments about what they see as the issue and confirm the case data if briefs have been pre-submitted. Next, the mediator will define protocol and set the time frame for the process. There will be a review of the mediation guidelines and the mediator will briefly recap what it is that he has heard as the issues.
The opening statement during the introductory remarks will set out the ground rules for the mediation. These ground rules are what help the mediation move along smoothly. The mediator will usually ask that if attorneys are present, they can confer, but the clients should speak for themselves. Parties should not interrupt each other; the mediator will give each party the opportunity to fully share their side of the story.
Statement of the Problem by the Parties
After the opening statement, the mediator will give each side the opportunity to tell their story uninterrupted. Most often, the person who requested the mediation session will go first. The statement is not necessarily a recital of the facts, but it is to give the parties an opportunity to frame issues in their own mind, and to give the mediator more information on the emotional state of each party. If there are lawyers present who make the initial statement, the mediator will then ask the client to also make a statement. The rationale behind the statement of the problem is not a search for the truth; it is just a way to help solve the problem.
Information Gathering
The mediator will ask the parties open-ended questions to get to the emotional undercurrents. The mediator may repeat back key ideas to the parties, and will summarize often. This helps the mediator build rapport between the parties, especially when a facilitative style is used.
Problem Identification
This might also be part of other segments. The mediator tries to find common goals between the parties. The mediator will figure out which issues are going to be able to settle or those that will settle first.
Bargaining and Generating Options / Reaching an Agreement
Methods for developing options may include group processes, discussion groups or sub groups, developing hypothetical plausible scenarios, or a mediators proposal where the mediator puts a proposal on the table and the parties take turns modifying it. However, the most commonly used method is the caucus.
Once the participants are committed to achieving a negotiated settlement, the mediator will propose a brainstorming session to explore potential solutions. This can lead to a final agreement, which diffuses the conflict and provides a new basis for future relations.
The mediator may decide to hold private sessions with both parties in order to move the negotiations along. This caucus session will be confidential. The caucus provides a safe environment in which to brainstorm and surface underlying fears. The goal of the session is to find some common ground by exploring lots of options, and to bring about possible solutions for the parties to think about. Parties can also entertain alternative solutions to their problems without committing themselves to offer the solutions as concessions.
Traditional litigation is a mistake that must be corrected... For some disputes trials will be the only means, but for many claims trials by adversarial contest must in time go the way of the ancient trial by battle and blood. Our system is too costly, too painful, too destructive, too inefficient for really civilized people." Chief Justice Warren E. Burger, (Ret.) U.S. Supreme Court.
We are in the midst of a litigation crisis. The high cost and long delays associated with the trial of civil matters often make litigation an impractical method of resolving disputes. It is not uncommon for the attorney's fees, expert witness fees, jury fees, court reporter fees and other related costs to exceed the amount in dispute. Parties increasingly find that they are spending more to litigate than the cost to settle the matter.
The increasing number of lawsuits filed each year is indicative of the unwillingness or inability of parties and their attorneys to effectively utilize negotiation to resolve disputes.
Because the current legal environment discourages the early settlement of disputes, society is demanding a new approach for resolving disputes more efficiently. That new approach is mediation.
Mediation is a process for resolving disputes by which an independent mediator assists the parties in reaching a mutually satisfactory settlement. It is an extension of the parties own negotiations and is sometimes referred to as a "supercharged negotiation."
A mediation session involves a discussion of the dispute by the parties, as opposed to the formal presentation of witnesses and evidence such as takes place in a trial or arbitration. The session will normally be attended only by the mediator, the parties and their attorneys. Because of the informality of the process, a mediation can usually be completed in a day or less.
The mediation process is entirely voluntary and non-binding. The mediator has no power to render a decision or to force the parties to accept a settlement. Rather, the mediator's role is to assist the parties in their negotiations by identifying obstacles to settlement and developing strategies for overcoming them.
A mediation session is private and confidential. It is normally held in a private office or meeting room and no public record is made of the proceedings. If no settlement is reached any statements during the proceedings are inadmissible as evidence in any subsequent litigation.
A mediation session typically begins with a joint meeting of the parties, their attorneys and in some cases, insurance company representatives. The mediator first explains the format and discusses the confidential and non-binding nature of the proceedings. The mediator will then ask the attorneys for each of the parties to make a presentation of their case, identifying the issues in dispute.
Following the joint meeting, the mediator will usually separate the parties and begin meeting with them in a series of private, confidential meetings called "caucuses". In these caucuses, the mediator works with each of the parties to analyze their case and develop options for settlement. Normally, the mediator will caucus numerous times with both sides until the case either settles or it becomes apparent that settlement will not be reached.
Mediation is different from an arbitration in that the mediator does not render a decision. Instead, mediation allows the parties to make their own decisions and fashion their own settlement. The mediator generally doesn't make recommendations but rather, allows the parties to make their own decisions based on a realistic analysis of their case.
The American Arbitration Association reports that over 85% of all mediations result in a settlement. This is true even where all prior attempts at settlement have failed, where the parties are pessimistic about the prospects of settlement, and where the parties have spent substantial amounts of time and money preparing for a trial. So why does mediation work, when the parties have been unable to settle the case themselves? There are a number of reasons.
First, negotiations between parties or their attorneys may never take place without the assistance of a third party mediator. Attorneys often fear that the making of any "reasonable" settlement offer will be taken as a sign of weakness or will be used by the other side as the starting point for the next round of negotiations. Mediation provides a safe environment for negotiation because the mediator can control and direct the communications. In this fashion, unproductive discussions can be avoided and concessions or proposals will be communicated only if they are likely to lead to a settlement.
Second, in those cases where some negotiations have taken place, they are often unsuccessful because the parties lack essential negotiation skills. Attorneys are often more interested in posturing, than in resolving disputes. As a result, they often employ hard bargaining tactics which emphasize the differences in their positions rather than seeking a common ground for settlement. Since the mediator's job is to keep the parties focused on exploring productive avenues to settlement, posturing and hard bargaining are often reduced or eliminated.
Third, mediation provides the opportunity for all parties to meet at the bargaining table for the express purpose of discussing settlement. All decision-makers necessary to resolve a problem are normally present. These decision-makers, who otherwise may be unavailable or distracted by other business matters, are able to focus their entire attention on reaching a settlement.
Fourth, during the mediation session, each party is given the opportunity to directly educate and influence their opponents in the opening presentation. Important issues can be emphasized and facts can be presented in a more favorable light. Also, the intensity of a party's feelings or emotions can be conveyed. As a result, the mediation session normally provides each side with a more realistic view of the opposing position (one not filtered through lawyers) and often results in the consideration of settlement proposals that otherwise would have been rejected.
Fifth, mediation allows each side to "test market" a settlement proposal by privately conveying the proposal to the mediator in a caucus. Unless authorized to do so, the mediator will not convey the proposal to the other party. The mediator will, however, be able to receive confidential proposals from the other side. As a consequence, the mediator will be able to determine whether a proposal is feasible without actually disclosing it to the other side. This allows each side to fully explore settlement options without negotiating against themselves or appearing to "give in".
Sixth,mediation offers each party a "realistic" look at their case and what results they are likely to achieve in court or arbitration. As the parties become clear on what they can realistically expect to achieve, their positions on settlement become more reasonable and flexible.
Seventh, mediation assists the parties in developing options for settlement. The more options that are developed, the greater the chances of success. Experience demonstrates that attorneys often excel in developing facts that support their positions but bog down when it comes to developing settlement options. The mediator can assist the parties to clarify their real objective and to consider alternatives that might be overlooked by attorneys engaged in battle.
The bottom line is that mediation works! It works because it brings all necessary parties to the bargaining table where they can "realistically" evaluate their positions and safely explore settlement options. It works in settling over 85% of the cases in which it is utilized, including those where the parties have been unable or unwilling to negotiate, or have taken unrealistic or intransigent positions.
Today, parties litigate because they know of no better alternative. However, as the benefits of mediation become more widely recognized, it will undoubtedly become the most utilized tool for resolving civil disputes in the future.
What Does A Mediator Do?
Okay, we know you can't make decisions. We know you can't issue orders. ('I'm not a judge or an arbitrator, blah, blah, blah.') We know you can't take sides, must always remain neutral. And we know you can't give us legal advice. And then you tell us mediation is a consensual process. Bummer. Now the other side can walk at will!
"So, what in the hell DO you do?"
Oh, you've never said this in so many words, but we've read your minds and understand your frustration. In many cases, you'd like the mediator to play judge and settle the matter once and for all, right?
The problem is the law and regulations covering the conduct of mediators and the process of mediation do not allow us to do these things, and it's well they do not.
Mediation is your process, not the mediator's. Decisions are yours and your client's to make, and mediation is the only forum in which you have complete control over decision making by or in behalf of your client. And, as much as you'd like the mediator to side with you, you don't really want this to happen, 'cause in a given case how would you know which side he or she actually is on, hmm?
And, finally, the rendering of legal advice is the job of the attorney representing the client. Ask for our opinion and we'll give it to you the best we can. But don't expect unsolicited advice. In the first place, you might resent it, professional pride being what it is, and, secondly, how would opposing counsel feel about our giving you favorable advice or reminding you of some legal principle you may have overlooked? He'll think, hmm, smells of bias.
So, what DO I do?
Well, first and foremost, I'll give you a hard time - or try to. I'll ask you questions you probably don't want me to ask or have forgotten to ask yourself or your client, or have forgotten the answers to. I call them "reality checks."
I'll ask you and your client what it is you're really looking for in a settlement. I do this as much for your benefit, to be sure you are clear about your expectations, as for ours in helping you reach that goal.
I'll bore you with clichés that, while you've heard them ad nauseam, are probably quite original to your clients and frequently do serve to refine the objectives in steering parties toward a resolution.
I'll remind you to look at the big picture and not focus on inconsequential legal or factual issues. They merely distract you from the key issues and your settlement goal.
I'll tell you and your client (just in case it hasn't been discussed in recent weeks or months) trials are expensive, stressful, take time and that their outcomes are terribly uncertain.
While subtle and often not appreciated, by separating the parties in breakout or caucus sessions, we are able to control heated emotions that can frustrate a settlement and to keep folks focused on their interests rather than their positions.
And, finally, A meditor can try to make the point that an amicable settlement, while not always satisfactory to either side, is the best of all worlds and a win-win for both sides.
Oh, also, occasionally, I'll share the latest good joke with you.even if it's not always worth the cost of admission.
Because your time may be limited, as your Private Consultant, I can meet you at your home, your office, the studio, or at another mutually acceptable location.
I can provide our service throughout the States of the United States.
International Service can be arranged through mutual arrangement via private online meetings.
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