Frequently Asked Questions…
Making the best decision for you… 3 steps towards resolution…
Meet And Confer
The first step in mediation is an initial meeting to investigate and discuss the scope of the conflict. Usually done by phone, an early meeting—hopefully before litigation even begins—avoids the hardening of positions and worry over “sunk costs” in discovery.
Design The Process
When and where to meet? Who should be at the table? What kinds of summaries and written materials might help the mediator and the parties better understand one another? Do you want your mediator to be strictly facilitative or more directive in his approach to you and the conflict? These considerations and more make up a solid ADR plan.
Implement The Plan
Rarely does the process follow the script, however well-prepared it might be. Parties who envisioned remaining at the table together may have to caucus one or more times to make progress. Impasse may dictate a “time-out” or other device to get the parties to step back, take a breath, and begin again. The mediator’s creativity, flexibility, and persistence are key in moving the parties to final resolution.
Q. What is mediation?
A. Mediation is an alternative conflict resolution process in which a trained and experienced neutral facilitator guides the parties in a quick, voluntary, confidential, and cost-effective manner to a negotiated settlement.
Q. Why mediation?
A. Mediation is quick, cheap, flexible, and autonomous compared to other forms of dispute resolution like arbitration or litigation. You decide upon the resolution of your conflict with the help of a trained facilitator–no one imposes resolution upon you. Mediation can be scheduled quickly in a safe and confidential environment, tailored to your case, and without need for time-consuming and expensive discovery. Most mediations can be done in one day or less, sometimes much less.
Q. Why do I need a mediator?
A. A mediator can help you avoid the cost, uncertainty, frustration, and lack of autonomy typical of other dispute resolution mechanisms like arbitration or litigation. A mediator can help you see your case and your adversary’s case in a new and perhaps more realistic light. A mediator can help you brainstorm and create possible outcomes you may not have thought of. A mediator can serve as an intermediary and buffer between parties, or their lawyers, who may not get along and whose personalities may stand in the way of resolution.
Q. How cost-effective is mediation?
A. Mediation is cheaper than arbitration and much less expensive than litigation. You may schedule mediation without need for extensive investigation or discovery. Most mediations can be done in one day or less. Scheduling is always subject to availability.
Q. How soon should I consider mediating?
A. You should consider mediation as early possible when you find yourself in conflict with another person–ideally, before you even consider going to court. Early in conflict you are less likely to have run up costs or become wedded to a position. You need not engage in extensive investigation or discovery of the underlying facts to begin productive discussion of the issues that separate you. But if you do find yourself in litigation, you can still mediate at any stage in the litigation process–before trial, after trial, or on appeal.
Q. What does the mediator do?
A. The mediator convenes the parties for a preliminary discussion of the facts of their dispute, perhaps on the telephone, organizes the time and place of the mediation, meets with them jointly or separately for a more in-depth discussion, sets an agenda, and helps brainstorm possible resolution. The mediator will then help the parties draft a settlement agreement.
Q. What procedure will we follow?
A. The mediator will conduct a pre-mediation conference, perhaps on the telephone, to discuss the facts and the issues and to set a schedule for the mediation. The mediator will then convene the mediation for an in-depth discussion of whatever conflict divides the parties at a time and site convenient for all parties. The mediator may use either joint or separate sessions as may be helpful or necessary. The mediator will set an agenda, help the parties brainstorm potential resolutions, and assist in drafting a settlement agreement. If the parties cannot reach a settlement, or if mediation is not right for you, the mediator can help you explore other alternative dispute resolution mechanisms.
Q. What outcome is likely?
A. Virtually any case or conflict can be mediated unless you must have a judge or jury decide your case for you, for example, if you have a question of statutory interpretation or constitutional law that cannot be negotiated. Even then, there may be a way to resolve your dispute short of litigation. With the help of a trained third-party neutral. Most people prefer to solve their own problems, rather than have someone impose a solution upon them. And mediation is well-suited for even the most intractable and emotionally-charged conflicts.
Q. What happens if mediation is unsuccessful?
A. If mediation is unsuccessful you are still free to pursue other remedies like arbitration or litigation. You may also continue negotiating with your adversary. Mediation will leave you with a better sense of the strengths and weaknesses of your position so that you are likely to settle at a later date.
Q. What will mediation cost?
A. The cost of mediation will depend upon the complexity of the issues and the number of parties. I typically charge an hourly or daily rate, depending upon the nature of the case or conflict. I will be happy to discuss costs with you in detail.