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Mediation and Dispute Resolution

Mediation is essentially a formalized negotiation session that the parties involved in a dispute attend, either with or without their attorneys. The mediator is usually an individual trained to work with the parties to try and reach a resolution of the dispute.

The mediator is not a judge, nor an arbitrator, and does not make a decision as to how the dispute is resolved. The mediator is typically referred to as “a neutral” because he or she does not have an interest in the dispute other than to encourage a resolution.

Mediation often is required by court process or contracts. Unless mandated, mediation can only occur if all the parties agree to it.

At the mediation, typically each party would describe to the mediator what the dispute is and his or her position with regards to the dispute. This is often done at an initial meeting with all the parties in attendance, with the mediator allowing each party to present, without interruption, his or her position. The mediator may ask questions for clarification. Typically, the parties would then break up into separate rooms with the mediator going back and forth carrying proposals. The process requires patience as there are often long periods of waiting while the mediator is meeting with the other side.

The mediator will have everyone sign a document indicating that whatever is said and whatever offers are made in mediation are confidential. Furthermore, the agreement provides that by making an offer or proposal in mediation, in the event the matter is not resolved, that offer or proposal can not be used against the party at a later date. In other words, the party can take a position at mediation for purposes of settlement and take a very different position in court for purposes of trial. The reason this occurs is so that parties will be willing to make offers of compromise.

Mediation sessions generally run from a half day to, sometimes, even days. As long as progress is being made, the mediator will encourage the parties to continue with the process. A major incentive to all the parties is that, if a settlement is not reached, the matter may proceed to court. Court is generally a long, time consuming, and expensive process. Also, no one can predict with certainty what a judge or a jury will do in a given case. The advantage of a settlement is that everyone knows the result.

If an agreement is reached in mediation, a short written document is prepared to be signed by all the parties. This document, often entitled “Mediation Agreement,” will anticipate other documents to be prepared by one or multiple parties with greater detail. The purpose of a signed document is twofold. First, to make sure everyone understands what the agreement is by seeing it in writing. Second, to have a document that can be enforced in the event a party attempts to back out of the agreement.

Generally, mediation agreements are enforced by the courts. There are circumstances when a mediation agreement is not enforced but they're rare.

In conclusion, mediation is often a way of resolving a dispute in a relatively quick and inexpensive manner. It doesn't always work, particularly if one or both parties are unreasonable or doesn't really want to resolve the dispute. Mediation, however, is something that should be considered as an alternative to what could otherwise be long and expensive litigation.