The Process

What is mediation and how does it work

The wheels of justice turn slowly, but grind exceedingly fine.

Henry Wadsworth Longfellow

These words are especially true in light of the restrictions imposed in response to Covid-19. Courts imposed moratoriums on trials created a huge backlog. Additionally your day in court will probably take place either by telephone or video conference.

Mediation can provide a resolution to your claim faster than proceeding to trial.

Mediation is an informal process where a mediator guides negotiations between the parties with the goal of reaching a resolution of the dispute. Mediations are typically voluntary. There is no legal penalty for not agreeing to mediate. The steps in that process are described below.

Mediations often begin with a JOINT SESSION which is merely a meeting between the parties and their representatives. Here both parties can tell the mediator their point of view regarding the dispute. The joint session is designed to let the mediator know the nature of the dispute, it is not an opportunity for the parties to argue. The joint session is not mandatory; if the dispute is too emotional the parties can opt out of this step of the process.

After the joint session, the parties are put in separate rooms for negotiations. This step is called a CAUCUS. In room separated from the other side, a party can freely discuss their point of view and analysis of the dispute with the mediator. DISCUSSIONS IN EACH ROOM ARE CONFIDENTIAL. The mediator will not tell one side what was discussed in the other room unless that party gives the mediator permission to do so.

The mediator shuttles back and forth between the rooms relaying settlement offers and whatever information the mediator has been authorized to tell the other side. Typically several offers will need to be exchanged before a settlement is reached.  A party should not get discouraged or give up on the process when negotiations move slowly. Mediation is a system that is very effective.

In the event the parties reach an agreement, they typically return for a second joint session to confirm that agreement. Often that agreement is written out and the parties will sign that agreement.    

Mediation differs from trial and arbitration. In both trial and arbitration, the parties attend a hearing where an impartial hearing officer makes a decision based on evidence and testimony. In trial the hearing office is the judge; in arbitration it is the arbitrator. Conversely, mediation is a process where a mediator facilitates the parties’ ability to communicate concerning the issues and to voluntarily agree on a resolution.

The mediator does not make decisions, but rather helps participants reach their own agreeable solutions. THE DISCUSSIONS IN A MEDIATION ARE CONFIDENTTIAL AND CANNOT BE USED AT ANY OTHER TRIAL OR HEARING.

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