What is Mediation?
Mediation is a form of Alternative Dispute Resolution (ADR) wherein an impartial person assists others in reaching a resolution of a conflict or dispute. Rule 17.01 of the Missouri Supreme Court describes mediation as “a process in which a neutral third party facilitates communications between the parties to promote settlement.” The important aspect of mediation is that, unlike the traditional court process, the parties decide the ultimate outcome of their resolution as opposed to a single decision-maker. There were several references made throughout ancient and modern history promoting mediation as a source of conflict resolution. Specifically, Greece, China, and even the colonial United States utilized some form of mediation.
However, despite its long presence in the United States, mediation did not take form into what it is today until the late 20th and early 21st centuries. First, starting out as government-funded programs that resolved community disputes, mediation gradually grew more popular with the legal system in resolving more complex disputes. In fact, several courts, including state and federal courts, even mandate the parties participate in mediation prior to proceeding with a trial. With the costs of going to trial and the court’s busy dockets, mediation has risen considerably in popularity within the modern legal system.
Is My Case Appropriate for Mediation?
Before answering the question of whether your case is appropriate for mediation, it is important to consider the intended goals of mediation. As you have probably gathered, one goal of mediation is to provide a timely, cost-effective, and confidential design for resolving civil disputes. Another goal of mediation is to give the parties a wider array of options to resolve their dispute. Going along with that goal, parties are encouraged to actively participate throughout the mediation session.
Attorneys, judges, mediators, and even clients who have participated in a mediation or two will give you several factors as to when a case has reached a point where mediation is appropriate. Notably, not all cases are the same, and, therefore, some parties may mediate a case as soon as a suit is filed or even before it is filed. Others may have completed the discovery process and participating in a mediation is the last step before they head to trial. Regardless, the one factor those who have participated in a mediation will mention, or at least should mention, is that the parties have reached an impasse due to a breakdown in communication.
At that point, a mediator should get involved to help facilitate a discussion between the parties. The mediator would help the parties understand their interests using a variety of methods that can help them view their position, and perhaps the overall case, in a new light. Communication between the parties, whether oral or written, is key to resolving any dispute. Through training and practice, a mediator understands what it takes to get the parties to effectively communicate.
What is the Mediation Process?
Now that your case is ripe for mediation, you can begin planning to mediate with your attorney. Your attorney will discuss with you the process of the mediation. The process can vary from one mediator to the next, however, the following are the general steps in which a mediator will likely proceed in conducting the mediation.
First, the mediator will give their opening statement in which they will explain the goals and rules of the mediation. One of those goals will likely be the each side communicate and work together toward settling the matter. After that, the parties will then give their opening statements without interruption, if they so choose. This can be done by either the attorney or client, and will generally encompass their version of the dispute as well as the consequences.
After the opening statements, each side will have the opportunity to respond to and ask questions regarding the other’s opening statement. The mediator is also free to ask questions during this time so they can better understand each party’s position. It is important to note that a mediator acts as a translator during these joint discussions. In other words, the mediator repeats back what they are hearing from the communicating party and asks for clarification where necessary.
As stated above, these discussions typically take place in a group setting, however, depending on the parties’ ability to communicate and how receptive they are to the opposing side’s statements, the mediator may call for a caucus. This is when the mediator separates the two parties and goes back and forth to discuss their positions and the strengths and weaknesses of those positions. The mediator will caucus for as long as they feel necessary, or as long as time allows, until the mediator feels a resolution can be met or the parties have come to a standstill in their discussions.
Whether the discussions are taking place in a joint or caucus setting, the mediator is working to formulate a proposal or multiple proposals for the other party that meets their interests. This can be a lengthy process that can last hours and sometimes even days at a time to come to a resolution. Regardless, once the parties come to an agreement, the mediator will outline the terms and write up a draft agreement. If the dispute is in suit, the mediator will write to the Court that a settlement agreement has been reached. If the parties fail to reach an agreement, the mediator will summarize where the parties left off.
Conclusion
It is important to discuss with your attorney all methods of resolving your dispute. Your attorney will be well versed in the pros and cons of those methods based on your type of dispute as well as the stage your dispute is currently in. There are several benefits to engaging in mediation with the two most predominant benefits being a timely and cost-effective method of resolving one’s dispute. Whether your dispute is in the stages of pre-litigation, or a lawsuit is currently underway, mediation might be an effective way for you and the opposing party to reach a resolution.
At Gausnell, O’Keefe & Thomas, we are proud to have three of our partners serve as mediators. GOT co-founder and principal attorney, Seth Gausnell, is a panel member on Lexitas’s local mediation/arbitration panel. GOT Law co-founder and principal attorney, William Thomas, is a panel member of the American Arbitration Association where he serves on the AAA National Roster of Mediators. Finally, Jim Gottschalk is also a panel member on Lexitas’s panel.
The mediation lawyers at GOT are committed to helping you achieve the most beneficial outcomes and bring fair solutions to your legal disputes. Contact us today to find out how we can help.