Last week, I outlined for you the general concept of mediation as a tool for dispute resolution.  This week, I want to describe for you just what happens at mediation.  As you may recall, mediation adds a neutral third person called a Mediator to the conversation between the parties to a dispute.  The Mediator facilitates communication between the parties.

But, how does mediation work?  There is a general format which is customary, but since mediation is a very informal process the format can be changed to suit the parties and the situation.

First, the opposing parties must agree to mediate their dispute.  They may have previously reached a partial agreement on some issues and limit the mediation to the remaining unresolved issues.  But in most cases, nothing will have been resolved prior to mediation.

Second, the parties select a mediator.  In Florida, lists of certified mediators are available on a web site from the Florida Supreme Court, if you Google “Dispute Resolution Center Mediator Reporting System.”  Another source is the County Court Clerk’s Office which also maintains a list of certified mediators.  Sometimes a friend, coworker, or business acquaintance will have had a good (or bad) experience with a mediator and will be able to make a recommendation.

Once a mediator is selected, and the date, time and location of the meeting is set, the parties need to agree on other conditions such as confidentiality. (There are statutes in Florida with respect to confidentiality and the parties in a private i.e. non-court ordered mediation can agree to be bound by the statutes covering confidentiality.)

Prior to the mediation, each party may submit a written summary of their case for the mediator for review prior to the meeting.  This is helpful to the mediator, but not required.  If a statement is submitted, it should identify the parties to the dispute, the nature of the conflict, including the issues preventing resolution, and of course, the amount of money in dispute.

When the parties meet with the mediator, the first step is usually a session including the mediator and all parties. The mediator will usually give a short introduction to explain to the parties what to expect from the process followed by any opening statement each party wishes to make.  Once opening statements are completed the mediator generally separates the parties into different rooms and meets with each party individually.  These meetings are referred to as “caucuses”.

The caucuses are also confidential, except for what is expressly permitted to be shared with the other party.  At the end of a caucus, the mediator summarize what information that party allows the mediator to communicate to the other party or parties or ask the party to state what information may be passed.  Examples of the information that may be passed from one party to another through the mediator are offers to settle, demands for damages, conditions of settlement etc.  The mediator may discuss with the party how to convey the information either by changes to terminology or how the information is to be presented.  A good mediator will keep the communication flowing in a non-confrontational manner in order to keep the parties moving toward a mutually agreed resolution.

The mediation process may require that the mediator shuttle between the parties many times to convey offers and counter offers; to explain points made by one party that the mediator has been authorized to disclose to the other party; or to seek clarification of a position or opinion expressed by a party.

The key thing to remember about mediation is that it is a voluntary and consensual process where the parties work to reach an agreement together – nothing is imposed on them.  The mediator is a facilitator, not a judge.  The mediator should be neutral and impartial.  He is there to assist, not to coerce.  A mediator does not offer legal advice to the parties as that would interfere with his impartiality.

One very experienced mediator once said to me, “Most mediators quit too soon.”  There is always the one additional step to try to get parties to agree to a resolution.  Even if the parties do not reach agreement at the end of a day, the mediation can continue over several days with additional sessions or by telephone conferences between the mediator and both sides, but a mediator should never give up as long as the parties are making progress and coming closer to a resolution.

Next week, I will discuss the benefits of mediation to the small business community.


Mediation & Arbitration

If you’ve ever been involved in a lawsuit, you know what a headache it can be.  It eats up time, money and energy.  There are simpler ways to arrive at an equitable resolution, without resorting to litigation:  mediation and arbitration.  These are often referred to as Alternative Dispute Resolution, or ADR.

Methods of resolving a dispute fall on a continuum, starting as simply as two people meeting together to talk out and resolve their differences, and ending at litigation.

While a simple discussion between the parties is the least expensive, it may not necessarily the most effective method to resolve differences.  But the next step up the line from that is mediation.

Mediation adds a neutral third person called a mediator to the conversation.  The Mediator facilitates communication between the parties and an agreement is reached only with the consent of the parties.  This can be more expensive than one-on-one discussions, if the mediator is compensated, but done properly can be far more effective than one on one discussion and much cheaper than litigation.

Arbitration is different from both mediation and litigation.  In arbitration, the parties present their positions to a neutral third person.  But unlike a mediator, an arbitrator is given the power to act as a judge.  Arbitration is very much like a trial.  The arbitrator reviews the issues, evidence and witnesses and then renders a binding decision.  It is less formal than a lawsuit, faster and often less expensive.

Litigation is and ought to be the last resort.  It is expensive and time consuming.  In litigation, the parties present evidence to a “finder of fact”, either a judge or a jury.  The judge or jury decides the outcome.

Parties may agree to use mediation, arbitration or a combination of the two after a dispute has arisen.  In other cases, there may be a mandatory arbitration or mediation clause in the contract between them.

In the interests of encouraging settlements before trials, in almost all cases, the State of Florida requires that parties to a lawsuit must engage in mediation prior to that suit going to trial.  Even in small claims court, volunteer mediators will meet with the parties at the pre-trial hearing to attempt to reach a negotiated resolution before the Court will assign a trial date.

The submission of a commercial dispute to mediation may be done voluntarily or at the prompting of a governmental agency or a court.  Mediation can also be a cost-effective way to resolve disputes between neighbors (community mediators), between unit owners and condominium or homeowners’ associations, between family members in family issues involving inheritance or divorce.

In my next post, I will discuss how a mediation is conducted.