Common Questions About Mediation:
What is mediation?
Mediation is a voluntary process involving an independent, neutral third party who facilitates communication between the parties to a dispute with the aim of the parties coming to a settlement or resolution on their own terms. It is a dialogue process designed to have the parties identify and shape their preferred outcomes. If no settlement or resolution is reached through mediation, the parties retain the right to go to court.
What is facilitative mediation?
Facilitative mediation is the traditional type of mediation where a mediator assumes that the parties are intelligent, and able to work toward resolution together, even if emotions may have caused impasse.
It is based on two core principles: 1. Empowering the self-reliance and self-determination of the parties to resolve their own disputes, and 2. A neutral third party facilitator can foster communication, promote understanding of the issues, focus the parties on their needs and interests, help the parties to seek creative solutions so as to enable them to reach their own agreements and resolutions to their problems.
The facilitative mediator operates on the assumption that the parties understand their own situation best, and therefore are in the best position to create better solutions than any mediator might create, or a judge or jury would decide. The facilitative mediator’s primary job is to enhance communication between the parties and guide them through a process to reach a mutually acceptable resolution.
What is evaluative mediation?
Evaluative mediation is a process modeled on the kind of settlement conferences held in court by judges. The evaluative mediator assumes that the parties want guidance as to the appropriate grounds for settlement – based on law, industry practice or technology. The mediator assists the parties in reaching a resolution by identifying the strengths and weaknesses of each side, and predicting what a judge or jury would be likely to do. The evaluative mediator’s tasks include finding facts by properly weighing evidence, judging credibility and allocating burden of proof, determining and applying relevant law, rules or customs and rendering an opinion. Based on that opinion, the parties arrive at a mutually acceptable resolution.
What is asynchronistic mediation?
Face-to-face dispute resolution happens in “real time” with each side reacting to new developments. A mediator can call a time out, or put the sides in different rooms, called caucuses, to break up this flow, but in joint meetings and discussions disputants must engage in a give-and-take where their responses are expected right away. This is known as “synchronous” interaction. With “asynchronistic” mediations these interactions do not happen all at the same time.
One of the benefits of online mediations is that the parties have the possibility of “asynchronous” interaction, where their response is not expected immediately. Disputants can connect to the ongoing discussion at different times, and even defer their response until after they’ve had time to consult with others, do some research, or just contemplate the situation.
This ability to interact asynchronously can help parties “be at their best” in a mediation. Instead of reacting emotionally to a new development or escalating a discussion out of surprise, parties can consider an issue and communicate in a considered way. They can still react emotionally, but they have the option of stepping back and reflecting before they respond.
Do I have to attend the mediation in person?
You have to be “present” in order to mediate a dispute and come to a resolution. This resolution is an agreement that you work out during the mediation, so your presence is necessary. However, being “present” can take many forms. The parties can agree to conduct the mediation in person, on the telephone, through email, or through a video meeting.
What if the other side is not willing to mediate?
Contact the mediator who can contact the other side and discuss the possibility of mediation. Conflict gets in the way of effective communication. Mediators not only help parties settle disputes, they can get parties to the negotiating table.
In addition, if both sides to the conflict cannot for some reason engage in mediation, we offer one on one conflict coaching services.
What is Conflict Coaching?
Conflict coaching is a program of confidential one-on-one sessions that assist individuals in addressing and problem solving. Conflict coaching is a proactive way for you to gain new insights and conflict resolution tools for resolving a particular personal or professional conflict.
What is the Best Time for a Mediation?
The best timing for mediation is as early in the dispute as possible. If litigation is involved, it would be the most cost efficient to have the mediation as soon as the parties and attorneys have a very good handle on all of the factual and legal issues and before expensive discovery, such as depositions, begin. Once parties invest large amounts of money in the discovery process, they can become intransigent and entrenched in their positions and it becomes more difficult to reach a settlement. It is not uncommon for lawyers and parties to become blinded by the fog of war – forgetting the fact that in trial at least one party necessarily must lose – while in a successful mediation, there are no losers.
Will I look weak if I ask the other party to go to mediation?
Suggesting mediation is not a sign of weakness. Today, over 90% of litigation ends in mediation of one sort or another. The parties can choose to mediate early and save the costs of protracted litigation, or spend the time and money getting to trial where a judge will order a settlement conference. Your early recognition of the option to mediate the dispute is the realistic way to save both sides time and money.
How much does mediation cost and who pays?
Typically, both parties share the cost of a mediation, with each party paying half of the mediator’s fees. Mediator fees can be by the hour, or in blocks of time, or per mediation.
We generally charge a sliding scale flat-fee for mediations scaled by income level of the participants and complexity of the matter.
What are the benefits of mediation?
The courtroom is very unpredictable and the outcome is never guaranteed. With mediation, the disputants decide the outcome, not some disinterested 3rd party. Trials are extremely expensive, both financially, and emotionally. Like in war, everyone gets bloody, even the winners. Courtroom resolution when it does come, is usually years off. Then, even with a favorable resolution, the other party can appeal the decision costing years, more unpredictability, and a lot more money. Furthermore, with mediations, unlike courtrooms, you can air your grievances and work through the problems confidentially. Your business and personal relationships can be preserved instead of destroying them in trial.
If you are interested in mediating a dispute, or would like more information:
Please Contact Us for scheduling.