CONSTRUCTING SOLUTIONS
Corona Virus Notice: We have past experience with mediation via teleconference. While the loss of in-person feedback, both verbal and non-verbal, is inherent in the process, the parties true objective of negotiating a final resolution to their dispute can often times offset any compromise in communications. Let us know if we can help.
My core belief, based on participating in scores of mediations over the past twenty-four years, is that parties prefer relying on their own good judgment in resolving disputes. Absent the overwhelming desire for vindication as a matter of principal, negotiating dispute resolutions is intuitively preferable to ceding decision-making responsibilities to a judge, jury, or arbitrator.
Mediation is a negotiation forum wherein parties craft and own solutions to their disputes. It also provides ancillary benefits including an infinite selection of settlement terms, the ability to preserve ongoing relationships, the satisfaction of communicating perspectives to the opposing party, the emotional relief of finality, and the ability to move beyond the dispute and focus valuable time on productive future ventures.
What is Mediation
Intervention between conflicting parties to promote reconciliation, settlement, or compromise. Merriam-Webster, n.d. Web. 4 Feb. 2015.
The process by which someone tries to end a disagreement by helping the two sides to talk about and agree on a solution. Cambridge Business English Dictionary
Facilitated negotiation. Dennis Strasser (2014)
The Mediation Process
The mediation process is flexible and often crafted to accommodate the specific issues and needs of the parties. The basic process includes pre-mediation written briefing by the parties or their attorneys, pre-mediation discussions between mediator and attorneys or pro se parties, and the mediation session, which consists of opening statements followed by negotiations. Absent resolution at the mediation session, facilitated negotiations can continue through the mediator.
Opening statements are often waived by the parties. Mediation sessions may include face-to-face negotiations between the parties with the mediator facilitating, negotiations in private caucus, or a combination of the two. Attendees may include just the parties, attorneys, experts, or anyone the parties believe will assist in the negotiations. Written settlement agreements are crafted by the parties and their attorneys when resolution is achieved at the mediation session.
Advantages of Mediation
Mediation is Efficient (Time, Cost, Flexibility).
Litigation and arbitration proceedings can and often do progress for years without resolution. Mediation sessions can be as short as an hour or two, with most lasting one work day or less. Complex matters justify multi-day mediations and, on occasion, multiple mediators. Mediation sessions can be scheduled pre- litigation or at any point in an ongoing litigation.
Mediation costs generally include attorney’s fees for briefing and attendance at the mediation session, and the mediator’s fee. When contrasted with the costs of litigation, mediation simply makes sense. In litigated matters where the attorneys are retained on a contingency basis, litigation fees and costs can range from ten to thirty-five percent of any damages award. In litigated matters where the attorneys are retained on an hourly basis, litigation fees and costs can exceed mediation costs by factors of ten, fifty, or more.
Mediations can be conducted at any location agreed the parties and the mediator. Typical locations include mediator conference centers, attorney conference rooms, a party’s place of business, and project sites. Less typical locations include hotel conference rooms, public library conference rooms.
Mediation Allows Self-Determination.
In litigation, a judge or jury is empowered to decide the outcome of the dispute. In meditation, the parties retain the power of determine whether a reasonable outcome is reached and the specific terms of that outcome. The mediator facilitates the parties’ settlement negotiations, and is not empowered to decide the outcome or compel an undesired outcome.
Mediation is Confidential.
Litigation and court-mandated arbitrations are a public processes, with court filings readily available to anyone interested. Mediation proceedings are confidential unless the all parties expressly agree otherwise. Mediation allows parties to explore settlement options consistent with their risk assessment of the matter at hand, and to enter into confidential settlement agreement without admission of liability or public disclosure of the settlement terms.
Mediation Allows the Parties to Generate a Broad Range of Resolution Options.
Litigation judgments generally identify the winning party and the damages awarded. Judicial monetary awards identify the amount owed, which is payable upon entry of the judgment with post-judgment interest accruing. Mediated settlements include terms that are not generally available through litigation such as delayed payment and time-payment options, broad non-monetary relief options, confidentiality, non-disparagement, third-party monitoring of settlement obligation performance, identification of a future business relationship between the parties.
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