Mediation is the “process by which the participants, together with the assistance of a neutral person or persons, systematically isolate disputed issues in order to develop options consider alternatives, and reach a consensual settlement that will accommodate their needs” Folber and Taylor, Mediation: A Comprehensive Guide to Resolving Conflict Without Litigation (1984).
Unlike litigation, mediation is collaborative, attempts to understand the root causes of the dispute, and allows parties to communicate and understand the other’s position. The essential elements of mediation are:
- Confidentiality. Mediation sessions are not transcribed or recorded, and information discussed may not be disclosed – and may not be used later in court. Mediators may not be forced to testify in court and must destroy all notes at the conclusion of the mediation.
- An informal process. Mediation is informal and flexible. It can also address multiple issues in one setting.
- Greater control over the outcome. Unlike a judge in a courtroom, a mediator does not make the decisions. The dispute is seen as a problem to be solved, and the parties are responsible for coming to an agreement. This allows the parties to choose tradeoffs, which is not always possible when decision-making authority rests with a third party. While it is usually advantageous to have legal counsel to ensure that you understand your rights and make decisions in your best interests, whether a resolution is reached – and what it entails – ultimately rests with the parties in the dispute.
- More satisfactory results. Mediation participants consistently report higher satisfaction with the results of the mediation than do people who resolved their disputes in court. Because the parties work to resolve the dispute themselves, there can be a greater feeling of ownership – and typically, a higher rate of compliance with the resulting outcome.
- Preserved relationships. Litigation often ends with what feels like a win-loss result – and sometimes accompanying bitterness. Mediation seeks to address the interests of all parties. Therefore, it can often preserve future working relationships in a way that a courtroom loss often makes untenable.
- Compliance. A mediated agreement is fully enforceable in a court of law. And what’s more, people seem more apt to comply with an agreement they reached together, versus one imposed on them by a judge.
- Early Stage Mediation. The advantages of mediation to resolve commercial disputes are clear. However, too often parties wait until money and time have been spent in pre-trial discovery and depositions before agreeing to submit the dispute to mediation. In many commercial disputes, particularly those involving construction claims, the parties know what happened on the impacted project. The parties to the mediation can agree to an informal exchange of those documents needed for a successful mediation and to submit to the mediator a summary statement of the party’s claims and defenses. These submissions are usually exchanged. However, many times a mediator will request a separate confidential submission. This confidential submission allows each party to reflect on the strengths and weaknesses of their respective positions.
How a Lawyer Can Help
Mediation does not require legal counsel. However, virtually all commercial disputes will benefit from an attorney who understands the mediation process and the specific legal strengths and weaknesses of the claims and defenses. A lawyer can help to ensure that you understand your rights and are entering an agreement that represents your best interests.
If you wish to learn more about the benefits and advantages of resolving disputes with the assistance of experienced mediators, we want to help. The trained mediators at Reager & Adler, PC have helped countless clients successfully navigate the mediation process.