You may be intrigued by the idea of mediating, instead of litigating, your next dispute. Often, mediations are less expensive and less time consuming than litigations. They also allow you to stay in control of the situation since no resolution is reached unless you agree to it. That said, it is important to understand exactly what happens at mediation before you agree to participate in the process.
First, you and the other party must agree to participate in a mediation and agree upon who will mediate the dispute. Often, this is negotiated through your attorneys. Therefore, it is important that you hire an attorney who has experience representing clients in mediations.
While an attorney is not a necessary component of a mediation, an attorney can be very important. An attorney’s job differs from a mediator’s job. The mediator’s job is to help the parties come to an agreement. It is not the mediator’s job to provide legal advice or to advise either party about whether or not to accept a resolution to the dispute. Therefore, an attorney can be useful. Some parties prefer not to bring their attorney with them to the mediation session. In that case, you may review the mediation agreement with your attorney before you sign it.
The next step is to arrive at the place chosen for the mediation. Once there, the mediator typically holds a joint session with both parties to the dispute and reviews the ground rules for the mediation and explains how the process works.
After the mediator explains the rules, the mediator usually asks each party to explain the issues that brought them to the mediation. Some mediators do this with both parties present and some put the parties in separate rooms and hear from them individually. This is usually a matter of preference for the mediator and may depend, in part, on how contentious the parties are toward one another.
Once the parties have had a chance to explain their side of the dispute to the mediator, the mediator will ask both parties for a proposed resolution to the problem and then share the information with both parties. The mediator will help the parties reach a consensus without providing legal advice.
If the parties do not reach an agreement and do not wish to schedule another mediation session then the mediation ends with no resolution and the parties are free to take the matter to court.
However, many times the mediation does end in a mediation agreement. The mediator will help the parties put their agreements in writing. Once the parties, with the advice of counsel (if they so choose), have read the agreement then they will sign it and it will become binding. If necessary, the mediation agreement should be filed with the local court. In some jurisdictions the parties can reach a partial agreement and decide to litigate any remaining issues or they can reach a temporary agreement where they agree to try out a proposed mediation agreement for a set amount of time and then reconvene.
Mediation is meant to be a more efficient, less formal and less contentious process than litigation. It is important, however, that the parties go into the mediation with a spirit of compromise and a basic knowledge of how the process works in order for their case to be successful.