What is “Mediation”?
Mediation is the process by which parties to a legal dispute employ a third party, called a “mediator”, to assist in resolving the dispute. The mediator is an unbiased and disinterested third party. She generally has undergone special training in dispute resolution and possesses in-depth knowledge of the subject matter of the dispute. In most instances, a mediator is a licensed attorney who has mediator training. This is important, as the mediator should understand the legal principles that will apply to the dispute and be able to explain those legal principles to the parties. The mediator can honestly communicate with each party the process and possible results if the parties cannot resolve the dispute and decide to move forward with litigation. Mutual understanding of the parties is import in resolution of the dispute.
• Note: The mediator is not a decision maker; rather, she is a facilitator helping to bring the parties together toward a negotiated settlement. As such, she cannot deliver a binding decision on a matter. The parties must ultimately agree or refuse to settle the dispute.
How do the parties initiate mediation?
Mediation can be either mandatory or voluntary. General principles applicable to each are below:
• Mandatory Mediation – Mandatory mediation is initiated pursuant to a court order or pursuant to the law (statute or regulation). For example, it is common for jurisdictions or courts to mandate that the parties to a family dispute, such as a divorce, work with a government sanctioned mediator prior to initiating litigation. Remember, mediation does not involve a decision-maker. Mandatory mediation, therefore, simply requires that the parties begin the process. The parties are not forced to negotiate or arrive at a settlement. The hope is that requiring the parties to take part in mediation will help them to voluntarily work out the legal dispute without having to resort to litigation.
What are the procedures for carrying out mediation?
The voluntary mediation process is far less rigid than that of mandatory mediation. Involuntary mediation is somewhat of an informal process. The mediator may employ any number of techniques to help the parties arrive at a negotiated settlement. Mandatory mediation procedure may be subject to law or court order. The most common format for carrying out voluntary or mandatory mediation of a legal dispute with or between businesses is as follows:
• Delivery of Evidence – Each party provides the mediator with all of the facts and evidence surrounding the dispute. The mediator will set a date for the mediation.
• Introductions – At the mediation, the mediator will introduce everyone, give an overview of the mediation process, and summarize the dispute at hand.
• Initial Statements – The mediator will often allow the parties to give an initial statement directed to the mediator and the other party. This serves a couple of purposes. First, it appeases the parties to allow them to voice their opinion on the matter. Second, it allows the parties to state a summary of their belief and facts in a persuasive manner.
• Private Sessions – Following the initial statements, the mediator will generally break the parties out into private sessions or caucuses. This means that the parties are placed in separate rooms, while the mediator moves back and forth between the rooms to negotiate the position of each party. These private sessions are optional at the mediator’s discretion, though, they prove to be very effective in getting the parties to exchange dialogue or enter into negotiations. They tend to break down the competitive spirit that is present when the parties are together. The mediator is in the position to play devil’s advocate and help each party understand the logic and legality of the other party’s argument. Importantly, the mediator explains the likely results at trial if the parties proceed to litigation. This can be the strongest tool of the mediator in opening the parties up to negotiation.
• Formalization of Agreement – If the mediator is successful, she will assist the parties in negotiating a resolution to the dispute. Once a consensus is reached, counsel for one party is then directed to draft a legal contract memorializing the terms of the settlement. The parties sign the contract to settle the dispute. They are legally obligated act in accordance with the terms of the contract.
Involuntary mediation may follow the same or similar steps, but the process is more closely dictated by court procedure, statute, or regulation.
• Discussion: Do you think it is important to give a mediator autonomy in carrying out the mediation process? Why or why not? Can you see any disadvantages to employing the process outlined above? Can you think of any techniques that could help the disputing parties arrive at a negotiated settlement?
• Practice Question: How and why do mediators use the isolation of the parties and conducting private sessions to help them reach a resolution of their dispute?
Challenging the mediation agreement?
A successful mediation results in a negotiated settlement between the parties. This is a formal contract that memorializes the agreed-upon resolution of the legal dispute. Once the parties enter into this agreement, it takes the place of the underlying dispute. The parties can no longer pursue litigation for the underlying dispute without breaching this contract. If, after the settlement agreement is signed, the parties wish to dispute the agreement, they must bring a contract action in court attacking the validity of the agreement. In this situation, however, the suing party is not suing regarding the underlying dispute but is arguing that the settlement agreement is not valid based upon some contract law principle. If the party is successful in rescinding (doing away with) the mediation agreement, the parties would be free to litigate the underlying dispute or pursue other forms of ADR.
• Discussion: Should parties be able to revisit the subject of the mediation even if the mediation resulted in a settlement agreement? What are the arguments for and against disregarding the settlement agreement?
• Practice Question: Venus and Maria submit their dispute to mediation. After several hours, they reach a resolution of their dispute and sign a settlement agreement. The next morning, Venus regrets having signed the settlement agreement. She thinks that the hours of mediation unduly pressured her into reaching an agreement. What are Venus’s options for pursuing litigation of the original dispute?