The Basics of Mediation
Mediation is a voluntary, consensual process that uses a, neutral third party to facilitate the negotiation of disputes. The goal is to reach a binding settlement agreement.
CASES AMENABLE TO MEDIATION
“Generally…almost any civil dispute is amenable to mediation.”
Virginia Supreme Court Chief Justice Carrico, 3/27/95
THE BENEFITS OF MEDIATION
The use of mediation is increasing dramatically across the nation. Generally, the advantages of mediation are recognized to be numerous and substantial:
- Control by parties – The parties remain in charge of the outcome.
- Opportunity for better results – The parties understand their dispute and their needs better than any court or jury could.
- Effective – Approximately 85% of cases handled by The McCammon Group reach settlement.
- Greater compliance – Parties are more likely to comply with a mediated result than with a judgment or an arbitration award.
- Reduced time and expense – Mediations are usually concluded within a day. They can be scheduled within a few days.
- Voluntary, consensual process – The parties stay in control. The result is determined by the parties.
- Preserved, improved relationships between parties – This is important where the parties have an on-going business or personal relationship.
- Decreased stress and disruptions to ongoing activities.
- Private and confidential
- Improved skills and relationships – Mediation helps parties in future negotiations and dispute resolution.
AGREEING TO MEDIATE
There are several ways to get to mediation.
1. Most often, one party decides it would be helpful to resolve the dispute through mediation and suggests mediation to the other party. The other side, typically, agrees.
2. In pending litigation, the court often suggests or even orders that the parties consider mediation.
SELECTING THE MEDIATOR
Once the parties have agreed in principle to the mediation process, The McCammon Group works with counsel to determine which of its mediators would be best suited to serve. Resumes are available to help the parties in their selection.
The basic role of a mediator is not to render a decision but to facilitate a negotiation. If the parties choose, an additional role of a mediator may be to evaluate the issues in dispute. These roles should be considered in picking a mediator. Additional factors to be considered involve the individual characteristics of the mediator:
- Neutrality and integrity
- Inter-personal skills
- Subject matter expertise, if the parties desire evaluation of the issues
Before the mediation occurs, the attorneys usually confer briefly with the mediator, typically by phone, to cover various particulars in preparation for the mediation: anticipated duration, attendees, format of mediation, etc. If the parties and the mediator deem it helpful, the parties may agree to submit prior to the mediation various pleadings, documents, photographs, etc. to give the mediator a background in the facts and the law of the dispute.
THE MEDIATION SESSION
The mediator first explains the process to be utilized and establishes the ground rules. All those in attendance sign a mediation agreement which, among other things, binds them to strict confidentiality.
PRESENTATION OF VIEWS
One party presents its view of the dispute. This presentation is informal and can be accomplished in any number of ways. This can be done by the attorney and/or the party. Pertinent documents are often presented. Cross-examination is not used; nor are any rules of evidence or procedure utilized. The other party (or parties) then responds in kind. Each party is free to respond until it is satisfied that its views have been fully presented.
PROBLEM SOLVING/NEGOTIATING STAGE
The parties and their counsel, working with the mediator, then initiate negotiations. The mediator focuses the parties on solving problems.
While the legal and factual aspects of the dispute continue to be relevant in the negotiation, the possible solutions may involve extra-legal issues, including business and personal matters. These non-legal matters are often at the heart of the dispute, yet they cannot be adequately addressed in a courtroom.
The negotiations continue until successfully completed or until an impasse is reached. The presence of a decision maker for each party is critical to these negotiations.
Often, these negotiations and problem-solving activities involve private caucusing among the mediator, one party and its attorney. Anything identified in a caucus as confidential will not be disclosed by the mediator to the other side without authorization. The mediator will then meet privately with the other party and counsel.
When a resolution is reached, a settlement agreement is reduced to writing and signed by the parties. If no agreement is reached, then the session is adjourned with clarity as to the status of the negotiations.
When a mediation session does not result in a settlement agreement, the prospect of settlement often remains viable. In those instances, the mediator will subsequently follow-up to keep the parties and their attorneys focused on finding a solution. By calling, emailing, or even re-convening the parties, the mediator patiently and with perseverance assists the parties to explore fully the potential for resolution.
The fundamental style of The McCammon Group is facilitation. This involves the personal skills of a mediator to clarify interests, identify issues, test the merit of positions, and generally to assist the parties in moving toward common ground. A mediator may also give legal information including the neutral evaluation of issues. Such evaluation is provided only where (1) the parties request it; (2) the mediator thinks that the requested evaluation is appropriate and necessary; (3) the mediator is qualified to give such evaluation; (4) there is sufficient information on which to base such evaluation; and (5) such evaluation is provided in reasonably broad and qualified terms. As the mediation proceeds, the needs of the parties may change, and the nature of the services provided may likewise change, at the parties’ request.
The McCammon Group’s Members do not give legal or other professional advice. They do not predict specific outcomes to legal disputes. While they may suggest possible options by which to resolve a dispute, they do not recommend any particular solution since the ultimate decision is made by the parties. They are not advocates for either party; nor do they engage in the practice of law as they provide mediation services.
THE ATTORNEY AS ADVOCATE IN MEDIATION
Mediation is not really an alternative to litigation. It is an additional negotiating method to assist in the resolution of a dispute. It is often used in the context of ongoing litigation to supplement that process. It follows that the expanded role of attorney as advocate, counselor, and problem solver is central to mediation. Accordingly, The McCammon Group requires all parties participating in the mediation to be represented by counsel.
PREPARING FOR MEDIATION
The parties and their counsel are well served by appropriate preparation. Both the party and attorney should enter the mediation with:
- A realistic view of the case; including its weaknesses as well as its strengths
- A clear understanding of the needs and goals of the client
- An initial presentation of their viewpoint
- A willingness to compromise
PERFORMING IN MEDIATION
The parties and their counsel should be prepared to:
- Evaluate the issues
- Explore and evaluate different settlement scenarios
- Find ways to assist the other party to be flexible on critical issues
- Be flexible themselves
- Make a decision
BEING SUCCESSFUL IN MEDIATION
Being successful means getting to the best possible result with the lowest possible cost – both emotional and financial. The key to that result is that the decision maker in mediation is not a judge, the lawyers, or the mediator. The decision makers are the parties, with the advice and assistance of counsel. Thus, the most effective approach to mediation is likely to be based on a desire to reach a good resolution and to end the dispute, rather than the combative style that may have characterized earlier interactions between the parties and their counsel. Being open to the possibility of crafting a creative solution means that the result may be something that both parties can live with more readily than if the result were imposed on them.
Generally, the interaction taking place within the mediation process is confidential. There are only a few exceptions to this principle. This encourages a full exchange of facts, views and feelings. However, the settlement agreement itself is not confidential unless so negotiated.