Mediation is an Alternative Dispute Resolution method that is effective in resolving on going disputes. This is often used as part of the litigation process when the parties are unable to effectively negotiate a settled resolution to the lawsuit.
Mediation may be thought of as assisted negotiation.
Keys to the Mediation Process
First, the process is collaborative. This means that no party in the process can be forced to agree to anything. The participants are encouraged and motivated to work together to reach a solution as to the outstanding issues and to reach the best agreement for everyone involved.
The process is confidential. All discussions and all materials developed for a mediation are generally not admissible in any court or other contested proceeding, unless there is a final, signed mediated agreement. The mediator will describe the extent of mediation confidentiality and exceptions to that confidentiality. Anything told to the mediator is break-out sessions, called “caucus meetings” remains confidential and will not be disclosed unless the party making the disclosure specifically authorizes disclosure.
Evidence including expert information can be used in this process. Individual or mutually acceptable experts can be retained. The opinions of experts, however, do not determine the outcome of the process. The participants always retain decision-making power. In the circuit and probate courts in Northern Michigan, require the attorneys for the parties, if any, to attend the mediation. It is not, however, the role of the attorney to do the arguing on behalf of his or her client. The focus in this process is to have the parties speak for themselves.
The mediator is a party who is trained in mediation and alternative dispute resolution techniques so that he or she is able to assist the parties in engaging in a productive dialogue on the outstanding issues. The mediator is not sitting as a judge but as an impartial and neutral third party. He or she has the responsibility to assist each mediating party and cannot favor the interests of any one party over another, nor should the mediator favor a particular result in the mediation. The mediator is ethically obligated to acknowledge any bias on issues in discussion. His or her role is to ensure that parties reach agreements in a voluntarily and informed manner, and not as a result of coercion or intimidation.
It has been found that agreements reached by the parties together are more likely to be satisfying to the parties and to be honored without further court intervention.
Why choose mediation?
Several reasons exist for choosing mediation over other channels of dispute resolution such as court involvement.
• It takes place in a safe, neutral place which levels the playing field for both parties.
• This is less expensive when compared to lengthy litigation which involves the discovery process of depositions, interrogatories, and the trials. While the mediator charges a fee comparable to that of an attorney, the process takes less time than litigation. Litigation takes months or even years to resolve; mediation achieves a resolution in a matter of hours or days. Taking less time means expending less money on hourly fees and costs.
• This is a confidential process. Court hearings happen in public; whatever happens in mediation remains strictly confidential. Only the parties and the mediator know what has gone on in the mediation. In our Northern Michigan courts, a mediator will not be forced to testify in court as to the content or progress of a mediation. It is a common practice for the mediator to destroy the notes taken during a mediation once that mediation has finished.
• The parties have the ultimate control over the resolution of the matter. In a trial, the parties will obtain a resolution, but it is one determined by and thrust upon them by the judge or jury. The result may leave neither party totally happy. In mediation, on the other hand, the parties have control over the resolution, and the resolution can be unique to the dispute. Solutions developed by the parties are ones that a judge or jury could not provide. Thus, mediation is more likely to produce a result that is mutually agreeable. This is not a win/lose as in a trial, but instead is a win/win, for the parties.
• Compliance with the outcome is ordinarily very high. This is because the result is attained by the parties working together and is mutually agreeable. This also results in less costs, because the parties do not have to seek out the aid of an attorney to force compliance with the agreement in subsequent actions.
• The mere fact that parties are willing to mediate in most situations means that they are prepared to adjust their position. Since both parties are willing to work toward resolving the case, they are more likely to work with one another than against one another.
• Since the parties are working toward a resolution with one another as opposed to against one another in litigation, it is possible to preserve the relationship the parties had before the dispute.