Mediation Questions Answered

Arbitration is a process in which a neutral party (or parties) is selected to hear both sides of a dispute and render a decision. Arbitration may be binding, non-binding, or binding on only one of the disputants, as pre-determined by the participants. Arbitration is only available if both parties initially agreed to this process of resolving their disputes as an alternative to court litigation. Mediation utilizes a neutral party, or parties, to assist the disputants in reaching a resolution to their conflict, which satisfies both sides that an equitable and fair conclusion has been reached. In mediation, the issue is resolved only when both sides accept the final result. In mediation, the mediator is completely neutral and does not decide on any issue – only suggesting possible alternatives and discussing various possible negative consequences of court litigation.

Mediation is often confused with arbitration. Arbitration is a process where a third-party arbitrator is employed to decide the outcome for the parties, much like a judge or jury. Arbitration is either mandated by contract or, less often, court-ordered. On the other hand, mediation is the most-frequently Court-ordered form of alternative dispute resolution (although it may also be required by the parties’ contract). A mediator is selected whose number one priority is to facilitate a mutually-acceptable (or, sometimes, mutually-unacceptable) resolution of the dispute. The mediator has absolutely no authority or ability to make any decision or finding in the disputed matter – but only to assist the parties in finding a solution.

Contrary to arbitration, mediation is mandated by law to be completely confidential. What this means is that nothing said or done in mediation may be used later by the opposing party as evidence to support their side of the case in litigation. The purpose of confidentiality is to encourage both sides to “let their hair down” and discuss the real issues in litigation, be candid about what is important to them and what is less important, so that resolution can be explored without (as much as possible) hidden agendas.

Generally, the participants first meet together as a group, and the mediator explains what will happen, and the ground rules. The participants sign a confidentiality agreement. Where appropriate, each participant gives a brief statement of the conflict. The participants will either stay in the same room together, while options are explored, or the mediator will put the participants in different rooms depending on whether the mediator decides one process is better than the other for encouraging resolution. The mediator may meet with each party separately in what is called a "caucus." Which party the mediator meets with first or how long the mediator meets with one party as opposed to the other should not be read to mean anything -- and surely does not infer that the mediator favors one side over the other. An effective mediator doesn't side with one party or the other. His role is to side with both parties to facilitate a resolution of their dispute. Once the parties have reached an agreement, the parties will draft a binding settlement agreement together.

Unfortunately, it is hard to predict with precision how long a mediation will take or how much a mediation will cost. These issues depend primarily on how agreeable the participants are. We bill $300.00 per hour for mediation time. When preparing Court paperwork is involved, there is a one-time $50.00 administrative fee. Mediation can take as little as one hour and as long as several days. We will be as specific as possible in these regards once we have a better understanding of your situation and the complexity of your case. Responsibility for mediation fees is an issue to be decided by mediation participants. Participants are encouraged to consider sharing fees to some extent so that all will benefit from expeditious and economic resolution.

The good news is that most mediations are successful -- generally anywhere between 80% to 90% of cases end up in mediated resolution. Both parties have to come to the table in good faith to try to resolve the issues. Stated simply, the mediation process generally helps people reach agreements.

In mediation, all discussions and materials, with very few exceptions, are confidential. If no mediated agreement is reached, evidence of the mediation discussions, mediation materials, and any draft mediation resolutions will not be admissible in any court or other adversarial proceeding.

Mediation is appropriate for most disputes, including employment disputes, property disputes, business disputes, personal injury, and malpractice disputes among other types of disputes.

It makes sense in most cases to mediate as early in the dispute as possible – before animosity increases and before the parties put substantial time, money, and energy into the conflict. However, the participants can mediate at any point. Participants can mediate with or without pending litigation.

The parties do not have to be in the same room. However, generally, mediation at least starts with the parties and the mediator meeting together. The parties can also then break up and meet with the mediator one at a time. The mediator may meet with each party dozens of times during the course of the mediation process. Remember, the less acrimonious the face-to-face meeting may be, the greater the opportunity for successful resolution. After all, you want to resolve this dispute sometime or another -- why not earlier than later?

In some mediation discussions, attorneys are present and represent the parties. In other mediation discussions, attorneys are not present, but are available as an outside resource for consultation. Participants need to decide how actively involved, if at all, they would like legal counsel to be. Participants may also choose to use experts, such as financial experts, child specialists, appraisers, and counselors. The Law Firm of Robert W. Rasch intends mediation to be an efficient, economical, respectful, and positive experience for its clients and welcomes additional questions.