WHAT IS CIVIL MEDIATION?Civil Mediation is a process for resolving disputes by which an independent neutral/mediator assists the parties in reaching a mutually agreeable settlement. It is effective for resolution of many types of civil disputes including personal injury, sexual harassment, workplace disputes, landlord tenant disputes and contract disputes. A mediation session involves a discussion of the issues and areas of dispute by the parties, as opposed to the formal presentation of witnesses and evidence such as takes place in a trial or arbitration. Mediation sessions are normally attended by the mediator, the parties and their attorneys. In cases that have not been filed in court, the mediation sessions may be attended by the parties and the mediator without attorneys present.
Mediation session are typically scheduled for 1/2 day or full day sessions and can most often be completed in a day or less.
The mediation process is entirely voluntary and non-binding. The mediator has no power to render a decision or to force the parties to accept a settlement. Rather, the mediator's role is to assist the parties in their negotiations by identifying obstacles to settlement, developing and brainstorming strategies for settlement and by helping the parties hear each other.
A mediation session is private and confidential. Unlike trials, which are normally open to the public, mediations will be held the Amherst Mediation Services' office. No public record will be made of the proceedings. If no settlement is reached, any statements made during the proceedings are inadmissible as evidence in any subsequent litigation.
A mediation session typically begins with a joint meeting of the parties, their attorneys and in some cases, insurance company representatives. The mediator first explains the format and discusses the confidential and non-binding nature of the proceedings. The mediator will then ask the attorneys or the individual parties to make a presentation of their case, identifying the issues in dispute.
Following the joint meeting, the mediator will usually separate the parties and begin meeting with them in a series of private, confidential meetings called "caucuses." In these caucuses, the mediator works with each of the parties to analyze their case and develop options for settlement. Normally, the mediator will caucus numerous times with both sides until the case either settles or it becomes apparent that settlement will not be reached. In some circumstances, and with both parties' consent, the mediation will proceed with joint sessions as well as private caucuses.
WHY MEDIATION WORKSStudies show that over 85% of all mediations result in a settlement. This is true even where previous settlement negotiations have failed, where the parties are pessimistic about the prospects of settlement, and where the parties have spent substantial amounts of time and money preparing for a trial. There are several reasons for mediation's success;
- Mediation provides a safe environment for negotiation because the mediator can manage the process and encourage effective communication.
- Mediation provides the opportunity for all parties to meet at the bargaining table for the express purpose of discussing settlement. All decision-makers necessary to resolve a problem are normally present.
- In mediation, each party is given the opportunity to directly educate and influence their opponents in the opening presentation. Important issues can be emphasized and facts can be presented in a more favorable light. Also, the intensity of a party's feelings or emotions can be conveyed. As a result, the mediation session normally provides each side with a more realistic view of the opposing position and often results in the consideration of settlement proposals that otherwise would have been rejected.
- Mediation allows each side to test a settlement proposal by privately conveying it to the mediator in a caucus. Unless authorized, the mediator will not convey the proposal to the other party. The mediator will, however, be able to receive confidential proposals from the other side and permit the mediator to determine whether a proposal would be productive without actually disclosing it to the other side. This allows each side to fully explore settlement options without negotiating against themselves or appearing to give in.
- Mediation offers each party a realistic look at their case and what results they are likely to achieve in court. As the parties become clear on what they can realistically expect to achieve, their positions on settlement become more reasonable and flexible.
- Mediation assists the parties in developing options for settlement. The more options that are developed, the greater the chances of success.