Mediation FAQ’s

Why mediation?
In conflict situations, the parties, whether individuals, corporations, or government agencies, typically have five alternatives: (i) walk away; (ii) work it out on their own; (iii) mediate; (iv) arbitrate; (v) litigate. Walking away is usually not a viable option and, if the parties were able to work things out on their own, there would be no conflict. Litigation and/or arbitration, while sometimes unavoidable (see below), are intensely adversarial proceedings that require professional representation, permit the parties little control of final outcomes, and conclude with formal binding decisions imposed by an outside third party authority figure. By and large, both require large investments of time, money, effort, and emotional energy and eventually end, more often than not, in lose-lose results. Mediation provides the parties with unparalleled opportunities to openly discuss and design their own win-win results.

What is mediation?
Mediation is the intervention into a dispute by a neutral third party, a mediator, at the request of the parties in dispute. A mediator is impartial, trained and experienced in the mediation process, and, by definition, has no decision-making authority. A mediator is neither a judge nor an arbitrator, both of whom render formal binding decisions for disputants instead of them deciding matters for themselves. Mediation is flexible and informal and no two cases are the same. It allows and encourages parties to think outside the box, to focus on issues important to them, and to ultimately design mutually acceptable agreements unique to their situation.

In most cases, mediation is a significantly better, faster, easier, less costly, less painful, less risky, and more healing alternative to arbitration, and especially to litigation. It is particularly valuable where on-going relationships are important. Mediation also helps parties more creatively and effectively function under conflict and other stressful circumstances, thereby helping them better cope with future problems without third party assistance.

What is the role of the mediator?
Mediators help parties negotiate mutually acceptable solutions to disputes in a variety of ways. These include (i) facilitating communication which, typically, has become strained, (ii) identifying genuine interests as opposed to posturing, (iii) clarify and focus on those issues truly in dispute, versus those that are incidental often highly revealing, and (iv) encouraging parties to take responsibility, as may be appropriate, for roles played in the origins and/or aggravation of the dispute, AND for crafting its solution. If and when necessary, mediators intervene to keep proceedings civil and in point and the playing field even.

What happens if mediation is successful?
Once the parties have agreed on a solution to their dispute, the resulting agreement is put in writing. Typically, the Mediator completes the first draft. Fine tuning of the agreement may be accomplished by the parties and their lawyers. Upon execution, it becomes a binding, legally enforceable contract and concludes the dispute.

What happens if mediation is unsuccessful?
If the parties are unable or unwilling to reach a mutually satisfactory resolution of their dispute through mediation, their right to take the matter on to arbitration or litigation remains unaffected in any way. Even when mediation is unsuccessful in this sense, it typically does succeed at clarifying which issues are genuinely in dispute and which are not. That is, disputes subjected to mediation tend, at the very least, to come out simplified and better focused.

What about confidentiality?
A key feature of mediation is that all proceedings are completely confidential. Under the laws of most states, statements made in mediation may not be used or subpoenaed for use in court proceedings under any circumstances. Moreover, as a precondition to commencing mediation with NAMA, the parties sign an Agreement to Mediate which includes the following language:

It is expressly acknowledged by the Parties that, for mediation to work, open and honest communications are essential. To promote this objective, all written and oral communications, negotiations, and statements made in the course of mediation shall be treated as privileged settlement discussions and, as such, be absolutely confidential.

Finally, under both state law and the Agreement to Mediate, any agreements reached during mediation may not be used in any way to establish precedent.

The purpose of all these laws, rules and agreements is to encourage parties to speak openly and with candor, with no fear that what they say may later be used against them.

What does mediation require?
For mediation to work, it is essential that certain threshold conditions be met. These include, but are not necessarily limited to:

  1. Parties must participate voluntarily;
  2. All decision makers must be present;
  3. Parties must commit to a good faith attempt to settle the dispute, that is, to genuine interest-based negotiations, not position-based posturing;
  4. Parties must accept responsibility for the dispute, and for its resolution; and,
  5. Parties must abide by the simple, informal rules of mediation, primarily honesty
    and civility.

If NAMA is the mediator selected, the parties must also read, sign, and abide by an Agreement to Mediate setting forth the terms and conditions of the proceedings.

When is mediation not appropriate?
If the conditions noted above cannot be met, or if the parties are unwilling or unable to sign and abide by the Agreement to Mediate , then mediation will not work. Period. Beyond that, given the uniqueness of each case, there are conflicts which, because of the timing, the facts, the law, the parties themselves, or the overall circumstances, simply do not lend themselves to the process. Part of the mediators job is to decide as early as possible if a given case can in fact be mediated.

What can be expected from mediation?
Parties who are able to resolve their disputes through mediation realize most if not all of the following benefits:

  1. Significantly less expense than litigation or arbitration – The costs of mediation (see Agreement to Mediate) are a small fraction of those of litigation or arbitration. And these are only the direct, hard costs of arbitration and litigation. The indirect and so-called soft costs can be far greater.
  2. Significantly faster resolution of the dispute than litigation or arbitration – Even difficult, highly complex cases can often be successfully mediated in a day or less. Compare this to the months or years it takes to arbitrate let alone litigate a case.
  3. Mutually satisfactory outcome – Parties are almost always more satisfied with mutually created and agreed upon solutions than with rulings imposed by judges, arbitrators, or other third party decision makers.
  4. High Rate of Compliance – Statistics show that agreements created by the Parties themselves have much higher rates of compliance than those mandated by arbitrators and judges.
  5. Comprehensive, highly customized agreements – Mediated settlements can be tailored to particular one-of-a-kind situations, address legal and extra legal issues alike, and resolve procedural, logistical, and psychological issues that the law does not even consider.
  6. Greater degree of control and predictability of outcome – By definition, with mediation the parties have total control over the outcome. The risks of unpredictable rulings by judges or arbitrators is eliminated.
  7. Preservation of on-going working relationship or more amicable termination of relationship – Many disputes occur in the context of on-going relationships. Mediated settlements that address the interests of all parties preserve working relationships in ways not possible with simplistic win-lose decision making procedures.
  8. Agreements superior to simple compromise or win-lose outcomes – Mediation enables parties to find ways to expand the options, find alternate satisfaction, and
    seek 100% solutions that create gains for all, losses for none, and solutions that all
    can live with.

If not now, what about later?
Often cases that cannot be mediated early on become viable candidates after the parties have litigated for a while seeing large outflows of time, effort and money produce minimal results and are ready to consider more constructive approaches.