Mediation is an opportunity for people who are having a dispute to discuss their issues and concerns and to make decisions about the dispute with the help of a neutral third person, called a mediator. As a mediator, Mr. Evans will help you focus on solving your dispute. He will not decide which of you is right or wrong and he will not tell you how to resolve your dispute. Instead, he will help you try to find solutions that make sense to you and that address your individual needs.
Why use mediation if we couldn’t settle this dispute through our own negotiations?
Mr. Evans brings an impartial new perspective to the settlement of your dispute. Through his own knowledge of the subject matter of your dispute, he can assist you in exploring creative “out of the box” alternatives that you might not have previously considered. He brings his broad background and experience presented in his biography to your dispute to aid in settlement. His experience can help you “restart” your conversations in a new way to help you take steps forward to resolution.
What are some other advantages of mediation?
- In mediation, you are the decision maker. You know your situation better than a judge or jury can possibly know. Together, you can come up with solutions that best address your concerns and issues in a manner that has a much greater likelihood of long-term success. You have the opportunity to tailor your agreement without the limitations of the judicial system required by the law and rules of the court.
- Mediation is private and confidential. If you go to a hearing or trial, you will be in a public courtroom, with no privacy or confidentiality. Because of the requirement of confidentiality, you will be allowed to talk about legal and non-legal issues without fear of others (including the judge or jury) hearing about it.
- Although you might be required to attend mediation, you are not required to sign an agreement. Agreeing is always voluntary. However, if you do reach an agreement, you will leave mediation with a full-blown detailed agreement signed by the parties and their attorneys that is a legally binding contract enforceable by the court.
- Since mediation is really just a business meeting, it is much quicker than the formal trial process. Thus, it will also cost less than going to court – both in dollars and emotional stress.
- When you reach an agreement, you are not gambling on what a judge or jury might decide. No one can predict what decision might be made at trial, but you will be bound by that trial decision whether or not you agree with it or like it. Your only option at that point is to appeal that decision, which costs even more in terms of dollars and emotional stress. The appellate process might even result in a return to trial, with yet another judge and jury. Mediation brings immediate closure and certainty – the agreement is not appealable and no one else makes your decisions for you.
What is the process for the mediation session?
Mr. Evans generally places the parties in separate rooms at the onset of the process. This private meeting without the other side present is known as a caucus. He begins with an introduction explaining the process and his role and emphasizing that you make the decisions. He discusses the issues with you to determine what issue is most important to you, as well as what issue is least important to you. If at any point you decide that a joint meeting in the same room would be productive, he will facilitate that joint meeting. At all times, he will expect all parties to mediate in good faith. Eventually, the mediation will end in one of three ways: 1) You reach an agreement as to some or all issues; 2) Mr. Evans determines that no further progress can be made because either or both of you are unwilling to continue discussing a resolution, ending the session in a “non-agreement”; or 3) Mr. Evans, with the parties’ consent, continues the mediation session by adjourning for the day and scheduling a second day. If you do not agree on some or all issues, you will have to go to court to have the judge or jury (if there is one) decide your case.
Why should I have an attorney represent me at mediation?
As a mediator, Mr. Evans is a neutral intermediary and will provide neither legal advice nor legal services to any party. He will not act as an advocate, representative, or counsel on behalf of any party. Your attorney’s role at mediation is to give you legal advice, to protect you from the opposing counsel and the opposing party, to obtain settlement, to narrow the issues for trial, to control risk, and to utilize the attorney-client confidentiality for your benefit. Your attorney will help you determine what your case may be worth or what to accept as a “good” settlement and will otherwise help you make an informed decision about settling your case. Your attorney will help you clarify factual and legal issues and will help with crafting any agreement.
Who participates in mediation?
The participants in mediation are the actual parties (and their attorneys) involved in the dispute. Participants must have full authority to settle the case. Non-parties (examples: friends, relatives, advisers) may attend only if all parties agree. If you want a non-party to attend, you should notify the other side in advance of the mediation conference to get agreement as to the attendance of such person and inform the mediator of any such agreement. If no agreement can be reached on the presence of a non-party, then you should consider obtaining a court order regarding such attendance rather than simply surprising everyone at the mediation conference.
What is the cost of mediation?
The cost depends on the complexity of the case and the number of participants and therefore the amount of time it takes to resolve all issues. Most mediations will require several hours of a mediator’s time in order to prepare for the session, get through the preliminaries, and make any real progress. You will want to leave with a full-blown detailed agreement, which takes additional time to craft to the satisfaction of all involved in the dispute. The parties should agree in advance on how the mediator will be paid, but the cost is generally borne equally by each party to allow all parties to be invested in mediating in good faith.
Which types of cases are suitable for mediation?
Almost every family and civil matter is suitable for mediation, either before the case has been filed (“pre-suit” mediation) or during the pending case.
Family matters include but are not limited to:
- Dissolution of marriage actions
- Paternity actions
- Timesharing and parenting plans for minor children
- Modification of timesharing, alimony, or child support
- Equitable distribution of assets and liabilities, including complex business issues
- Prenuptial Agreements
- Dependency issues
- Contested adoptions
- Domestic Violence
Civil matters include but are not limited to:
- Contractual disputes
- Foreclosure disputes
- Commercial evictions
- Construction litigation
- Personal injury
- Malpractice disputes
TIPS TO ATTORNEYS FOR A SUCCESSFUL MEDIATION
- Always prepare and submit a mediation summary for Mr. Evans in advance of the mediation. You will be better organized and your client will appreciate receiving a copy of it. Also, provide Mr. Evans with a copy of the pleadings and other relevant documents in advance. He actually reads all of the materials in preparation for the session and is therefore much more effective during the session itself.
- Don’t use Mr. Evans as just a water boy to shuffle back and forth between the rooms. Give him the reasons and rationale for your offers and counter-offers so that he can be more persuasive when dealing with the other parties.
- Prepare your client for settlement in advance of the mediation session. Settlement generally means that each party is taking something less than what might be awarded at court. Remember that no one accepts his or her worst day in court during mediation. Insisting on all that you are entitled to leaves the other party with no incentive to settle and insures that there will be a trial. Think about what you really need to resolve the dispute – decide what is most important and least important to your client, but also think about what may be most and least important to the other party as well. Set realistic goals with your client to guide your client in decision-making, but prepare your client to be flexible because you may get new information during the mediation session that could change your client’s mind.
- Keep in mind that the single most significant obstacle to a successful resolution through mediation is the attorney who “over-advocates” for the client (that is, the attorney who uses excessive efforts to obtain more concessions from the other party than are realistic or acceptable under the circumstances). Even though your client may have hired you to litigate on his or her behalf to the “nth degree,” you both need to check this tendency at the mediation door. Mediation is not about “beating” the other party or “winning” at all costs. Mediation is a forum under the guidance of the mediator where the parties negotiate a settlement based on what your client can accept, whether or not your client may be entitled to more or could have gotten more in court. Over-advocacy at mediation leads to false hope and eventual disappointment for the client. It only prolongs the mediation process, increases the level of stress, and diminishes the chance of settlement. Over-advocacy is not mediating in good faith.
- Do not schedule other commitments after you think the mediation session should end. You do not want to be in the position of having to end the session prematurely at a time when resolution is imminent. If your client has child care commitments, instruct your client to arrange for a babysitter so that no one has to worry about the child’s well-being until the session is over. Finalizing a detailed draft of the agreement can take an undetermined amount of time as there are generally matters that need clarification and/or further negotiations. No one should leave at that critical moment because of other obligations, so be prepared to stay as long as progress is being made. Remember: a verbal agreement is the same as no agreement at all.
- Consider getting a cost deposit from your client in advance of scheduling the mediation. Evans does not know your client and he is not offering his services to your client. Instead, he is offering his services to you and will look to you to pay the initial deposit to reserve the date and to pay the remaining balance of the cost of his services immediately upon the conclusion of the mediation prior to anyone’s departure. Getting a cost deposit will insure that you will be able to pay Mr. Evans at the conclusion of the session.
CONCLUSION: The more that you put into being prepared for mediation, the more likely the outcome will be a fair and reasonable settlement. However, even if you do not settle the case at mediation, you can leave having discovered more information and having gained more knowledge about the strengths and weaknesses of your case.