Mediation Frequently Asked Questions (FAQ)
What is mediation?
Mediation is a faster, cheaper, less burdensome way to obtain a resolution of disputes that the parties accept—because it is their agreement, not the decision of 12 strangers in state court, 6 strangers in Federal court, or a single judge. When two or more people or companies that have a dispute agree in writing to seek help in resolving their dispute from a paid professional trained to assist the parties to reach a mutually satisfactory end to their dispute.
Is mediation “binding?”
Mediation is a private informal process that requires the parties to consent to the resolution of their dispute. Once the parties agree on a resolution, that agreement can be as “binding” as any other written contract. Most mediated agreements are reduced to writing at the end of the mediation (or otherwise recorded) so all parties are clear on the terms of their agreement and so the written agreement can be enforced by a court, if necessary.
How is mediation different from arbitration?
In arbitration the parties who have the dispute also agree to a participate in a private, but more formal, process to resolve their dispute. Arbitrations are more structured than most mediations. The arbitrator is hired by the parties to render a decision on how the dispute will be resolved, rather than the parties coming up with their own agreement as in mediation. Parties can agree to arbitrate disputes when they first enter into a contractual relationship with one another or after a dispute has arisen. Arbitrator’s decisions are always in writing and cane be enforced by a court if the parties’ agreement to arbitrate provides the arbitrator’s decision will be binding.
Do mediators have to be lawyers?
Does the mediator tell us who is right and who is wrong?
Do mediators have to be certified by the government?
No. See Certified Mediators Article.
What is co-mediation and why would I want it?
Co-mediation is simply a mediation with two or more mediators. It is useful when there are multiple parties. It is useful when there are complex issues for which at least one of the co-mediators is considered a subject matter expert. It is also useful when one of the co-mediators has experience with the forum in which any litigation might occur if the dispute is not resolved, such as a dispute that may arise in one locale but could be litigated in courts in other jurisdictions. More than one set of eyes and ears can sometimes bring needed focus to all the issues in complex matters.
How do I know if a mediator is going to be able to help me resolve my dispute?
You should always interview your mediator to determine the mediator’s approach to cases. Not every mediator is suited for every case, just like not all lawyers are suited for every case. There are many mediators and many approaches to mediation. You should find one with whom you feel comfortable.
Can my lawyer participate in the mediation?
I don’t have a lawyer. Can I mediate without one?
My lawyer does not want me to mediate. What should I do?
You should learn why your lawyer does not want you to mediate. Some cases are not suited for mediation. Most are though. You should explore this issue in depth with your lawyer.
When should I mediate my dispute?
Mediations can be successful at many stages of the dispute. Statistics prove that most cases do not get resolved by a jury trial. They are settled or resolved through other means. The sooner you can get the dispute resolved, the sooner you can stop spending money and time on the dispute. Most people do not enjoy litigation. The sooner you mediate, the more likely you are to resolve the dispute before you have invested too much in the litigation process.
What kind of preparation should my lawyer and I do to increase the likelihood of a successful conclusion to the mediation?
Visualize what it will be like to have the dispute ended in various ways. What will it feel like if you have your “day in court” but the particular jury that you were given decides completely
against your case? Evaluate how you will feel about an appeal to the next court. List ways that you would feel comfortable resolving the dispute. List ways that you think your opponent would feel comfortable resolving the dispute. Practice telling your side of the story in five minutes or less with the goal of making the strongest impression as to why the opposing side should want to resolve the case in mediation that day.
We mediated once but got nowhere. Should we try it again?
Yes. The stage of the dispute, the positions of the parties, and the mediator selected all make a difference in potential outcomes. Nothing is static in a dispute even if it may seem that way. If it is unlikely the case will end in a jury verdict anyway, as statistic show, you should try another mediation.
The court ordered us to mediate but the other side says they will “never” settle the case. How can mediation ever work in that situation?
It does. A successful mediation leads all parties to evaluate their positions and all possible outcomes. Mediation restores power over the parties’ destiny to them, instead of leaving it in the court. This feature of mediation has strong appeal to most people when they are able to realize they are being given the chance to regain control.
Who pays the mediator?
All parties must contribute to the mediation fee so they have a stake in the outcome. Usually the fees are paid equally by all parties.
What is the mediation fee?
It varies depending on the complexity of the mediation. You will have an individualized quote for consideration after the initial consultation, which is always free.
How do I reserve a mediation date?
It is easiest to reserve a date during the initial consultation conference call so all parties’ schedules are considered.
We are set for trial next month. Can you still mediate for us?
Usually, yes. Short-notice mediations can be arranged depending on the locale.
As of September 7, 2010