Mediation
The Winning Solution

What is Mediation?

The act or process of mediating; intervention between conflicting parties to promote reconciliation, settlement or compromise.

Arbitration and mediation are valuable in resolving business disputes.  Both are private and neutral/with expertise.  But…Mediation is an attractive alternative to arbitration.

Why Use Mediation?

Mediation                                           Arbitration
Low or no cost                                     Moderate cost
Little delay                                            Moderate delay
Win/win outcome                                  Win/Lose/Split
Collaborative                                         Adversarial
Maximum range of solutions                   Result limited to monetary award
Improves relationships                            May damage relationships

Key Features
Voluntary/Private Process

• Parties decide to enter the mediation process
• Parties can leave the mediation process at any time
• Parties have complete control over the outcome

Neutral/Impartial Mediator

• Understands issues quickly as facilitator
• Typically is familiar with real estate practice and customs
• Mediates only matters where he/she remains neutral and impartial
• Discloses conflicts of interest (parties may agree to continue following disclosure or terminate session)
• Facilitates and assists with negotiations – controls the process, not the substance
• Honors the concepts of self-determination, respect and civility
• Enhances the parties’ abilities to understand their own and each other’s needs
• Helps parties understand the alternatives to settlement

 Confidential Process

• Mediation is a confidential settlement process
• Neither the mediator nor the parties disclose the communications or conduct of the mediation, unless all parties agree (with limited exceptions, such as risk of harm)
• Ethical violations discovered as a result of participation in the mediation are not reported
• Settlements discussed in mediation are not admissible in arbitration
• A mediator cannot be a witness in arbitration or court (cannot be subpoenaed)
• Information gathered and exchanged may be used in arbitration only to the extent that it was obtained independent from the mediation process

 Why Mediation Works

• Most disputes are successfully resolved
• High speed – generally about four hours
• Low or no cost
• Flexible
• Maintains/improves relationships
• Improves poor communication/clarifies misunderstandings because parties come together/talk
• Discovers/addresses the true interests of parties
• Moves beyond different views of law/fact
• Allows creative solutions beyond win/lose
• Respect and civility are the ground rules
• Solution is just as binding and enforceable as arbitration

When It Will Not Work

• When there is a precedent needed
• When there is no relationship and it’s cheaper to contest the claim
• When vindication/punishment remains the main objective
• Jackpot syndrome is involved (maximize/minimize recovery)

                                                          Process Overview

Pre-mediation Preparation

• Ten days prior to session, parties receive a letter explaining the mediation process and logistical issues
• Parties agree to mediate
• Mediator is selected
• Arrangements are made via letter
• Witnesses and/or attorneys may attend, but this is not necessary because the process is non-adversarial; does not invoke findings of fact
• Information is exchanged (Parties need not prepare exhibits or extensive documentation.  If a document will clarify an issue, it may be used, but parties are reminded that mediation is not a fact-finding conference.)

Mediation Conference

• Mediator explains process/rules/goals, including volunteering information, neutrality, and confidentiality
• Parties’ initial statements/questions (Understanding perspectives; Venting)
• Identification of Issues
• Create Agenda
• Cross-talk (Parties respond to each other and explain/explore information, needs, and feelings.)
• Caucus (Mediator may meet privately with the parties to clarify needs and explore options for resolution and proposals.)
• Building an Agreement (With mediator’s assistance, parties explore and refine workable solutions.)
• Conclusion (Agreement is reached/signed before leaving mediation or all agree that no further progress can be made, in which case parties are free to pursue arbitration.)

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