The Mediation Process
Mediation is a dispute resolution process, alternative to litigation or arbitration, in which an impartial third party, the mediator, assists the parties in negotiating a settlement. The mediator does not provide legal advice to the parties and does not render a decision on the issues in the dispute. The primary responsibility for the resolution rests with the parties. Mediation can often provide a quicker and less costly way to resolve disputes, while eliminating the risk of an unfavorable or unexpected judgment. Mediation allows the parties to craft their own settlement agreement which may be more to their liking than one imposed on them by a judge or arbitrator.
Prior to the mediation session, the parties to the dispute will be asked to provide brief background information on the dispute and to agree to the terms of the mediation.
The parties at the mediation session should have sufficient authority to negotiate a final settlement. The parties need not be accompanied by legal counsel during the mediation, but may choose to do so.
The mediation session will normally begin with all parties present in the meeting room. The mediator will explain the steps in the process, his own role, the rules of behavior, and the private and confidential nature of the discussions. Each party will have an uninterrupted opportunity to explain the issues in the case and what they believe would be a fair resolution. The objective is to encourage dialogue on the issues and a joint search for ways of resolving the issues on terms acceptable to all parties.
During the course of the mediation, the mediator may meet jointly or separately with the parties while assisting in the development and evaluation of options, proposals and counterproposals. In order for the mediation to be successful, the parties are asked to keep an open mind as to what a final settlement might look like.
If the parties are successful in reaching a settlement, it will be reduced to writing, approved by the parties, and signed. The settlement document will represent a legally enforceable contract. Each party may have the settlement document reviewed by such party's attorney prior to execution.
Except for a final, written agreement, nothing said nor notes taken during the session may be used against any party in any legal proceeding, nor may any party, including the mediator, be called to testify as to what took place during the mediation. It is also inappropriate for the mediation session to be used as a discovery process by one party against another or to be used for serving legal documents or subpoenas.
Either party to the mediation may withdraw and terminate the mediation at any time and for any reason. The mediator may also suspend or terminate the mediation if he believes that a reasonable settlement is unlikely.
If no settlement is reached within the time allotted for the mediation session, the parties should decide whether to schedule a subsequent session.
The mediator will use his best efforts to assist the parties in reaching a settlement, but a settlement can neither be coerced nor guaranteed.