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WHAT IS MEDIATION?

Mediation is a supervised settlement conference presided over by a qualified neutral mediator who suggests alternatives, analyzes issues, questions perceptions, uses logic, conducts private caucuses, stimulates negotiations between opposing sides, and keeps order. Mediation has proved very successful in securing a high percentage of settlements on an amicable basis without the expense, exposure, and uncertainty of trial.

The mediation conference starts in a conference room with all parties and their attorney’s present. During the mediation process private rooms or offices should be available for individual caucuses and conferences.

The mediation process itself is intended to be informal in nature, while the actual ebb and flow of the process is structured by the mediator. Unlike arbitration which results in an award and possible judgment, the only result of the mediation is an agreement of the parties. Although the mediation process is inherently flexible, as a rule, the following guidelines apply to the conduct of the mediator:

THE MEDIATOR WILL:

  • Be impartial.
  • Suggest alternatives.
  • Have private meetings or caucuses with the attorneys, parties, corporate representatives, and claims professionals.
  • Assist in clearly identifying the issues.
  • Privately debate each side’s logical basis and perceptions.
  • Respect confidential and/or privileged information.
  • Allow the parties to negotiate.
  • Guide the parties and counsel in finalizing a specific settlement agreement.

THE MEDIATOR WILL NOT:

  • Act as a judge or arbitrator.
  • Rule upon questions of law or fact.
  • Render a decision or award.
  • Hear testimony.

Trial counsel and the parties, to include corporate representatives and necessary claims professionals, are required to appear and participate in the mediation process and must attend with complete authority to compromise and settle the action. Participants should remain and participate until a settlement is reached, an impasse declared or the parties, with the consent of the mediator, agree to continue the mediation conference to a future date certain. Usually mediation conferences last somewhere between 3-5 hours.


WHAT ARE THE ADVANTAGES OF MEDIATION?

ADVANTAGES FOR THE COURT:

  1. Docket management and control.
  2. Resolves the case without the necessity of judicial labor for trial
  3. The dispute is resolved early and not on the eve of trial, thereby allowing the Court to schedule other cases in the allotted time.
  4. Voluntary settlements as a result of bargaining by the parties usually do not need post trial enforcement proceedings or appeal and resolve all outstanding issues between the parties.
  5. Citizens and attorneys are more satisfied with the “system”

ADVANTAGES FOR THE ATTORNEYS:

  1. Enable them to negotiate a settlement which may be more favorable than their expected result at trial.
  2. Facilitates negotiation - forces the creation of an event at which both sides must negotiate in good faith.
  3. Accomplishes the goal of the client without a disproportionate expenditure of attorney’s fees and costs.
  4. Client satisfaction - enables the attorneys to deliver a product (resolution of the dispute) favorable to their client and with which their client is satisfied.
  5. Provides more effective use of the attorney’s time.
  6. Provides an opportunity to directly communicate their party’s view of the case to the other party or the ultimate decision-maker for that party.
  7. Protection of having the client participate in the negotiation process.
  8. Durable agreement - no appeal - no collection problem.
  9. Prevents settlement negotiation distraction during the trial process.

ADVANTAGES FOR THE PARTIES:

  1. Allows them some management control over the resolution of the dispute.
  2. Prevents the unlimited exposure and uncertainty of trial.
  3. Allows them to exert some informed direct influence over the outcome of the dispute after observing the other attorney, the other party, and hearing a capsule discussion of the case with a neutral outsider.
  4. Avoids the expense of final trial preparation and trial.
  5. Allows the party to bargain through counsel for certain key elements which are extremely important in exchange for other elements which are less important.
  6. Each party gets to see the other’s best offer and the parties can decide to take it or litigate.
  7. Enables a party to stop the expenditure of time and personal involvement in the litigation and therefore, exert energies to other business pursuits or other normal activities.
  8. Relationships preserved or improved.

WHAT TYPES OF CASES ARE SUITABLE FOR MEDIATION AND WHEN SHOULD THE MEDIATION TAKE PLACE?

A wide array of case types are suitable for mediation and the timing can vary greatly. Many cases can even be successfully mediated pre-suit. I have found this particularly true in insurance cases where claims representatives and attorneys generally have already investigated the facts. Also commercial disputes between parties who have ongoing business relationships which each party would prefer to maintain. The following are just some areas of Civil Law where mediation can be useful:

ADA Disability
Anti-Trust
Appellate
Automotive
Banking & Finance
Civil Rights
Commercial/Business Partnerships
Construction
Consumer Fraud
Contract Disputes
Debt/Foreclosure
EEOC
Eminent Domain
Employment
Engineering
Environmental
Franchise
Health Care
Insurance
Intellectual Property
Land Use/Planning

Landlord/Tenant
Libel & Slander
Local Government
Media & Communications
Medical Malpractice
Negligence
Nursing Homes
Personal Injury
Police
Probate
Product Liability
Professional Fees
Real Estate
Small Claims
Taxation
Technology
Torts
Transportation
Trusts
Workplace
Wrongful Death



HOW DOES MEDIATION WORK?

At the beginning of the formal mediation, the mediator explains his/her role, the confidential nature of the proceedings, and any ground rules (e.g., no name calling), the benefits of mediation, and any procedural steps that will be followed (if any). The mediator will also outline his/her background and experience and answer any appropriate questions about the mediation process.

The attorney for each party will then outline their view of the dispute. During this fact-gathering stage, the mediator will begin to define the issues, helping the parties to focus on the issues rather than their positions. This process continues during private meeting with the parties and their attorneys. At appropriate times the mediator will reinforce points of agreement and conduct reality checks whenever necessary. The mediator focuses the parties on what they want to see happen in the future.

Once a tentative agreement is reached the mediator will clarify the terms of the agreement to make sure all parties understand the terms of this mediation agreement. This is usually best accomplished by having the parties themselves restate the agreement in their own words. The attorneys for the parties prepare the essence of the mediation agreement in writing.

IS MEDIATION VOLUNTARY?

Mediation is usually voluntary although participation is sometimes mandated by contract or by the court. Settlement, however, can never be mandated. When settlement is reached, studies show that the mediated agreements are more likely to be complied with than decisions imposed by arbitrators or judges. This success may be because the parties take an active role in the decision-making process.

WHAT DOES A MEDIATOR REPORT TO THE COURT?

At the conclusion of the mediation conference, the mediator files a mediation report indicating whether all the required parties were present. The report also indicates whether the case settled, was continued with the consent of the parties, or whether the mediator declared an impasse.

HOW ARE MEDIATIONS SCHEDULED?

The attorney’s for the parties should agree on one or more dates which they prefer for the mediation and which provides them sufficient time to prepare for and attend the mediation. They should also verify their respective clients are available for these dates and times. The mediator should then be contacted for the setting of a time certain and an agreed upon location for the mediation to take place. In the standard two party mediation the agreed upon location should have one room large enough to accommodate all parties and their attorney’s as well as one separate room for conducting a private caucus. In most cases one of the attorney’s offices is acceptable; however, if one of the parties objects, a neutral location can be arranged with any cost being borne equally by the parties. The mediator will mail a confirming appointment letter concerning the date, time and place.

HOW ARE MEDIATORS COMPENSATED?

Unless otherwise agreed by the parties, the cost of the mediator is borne equally by the parties. The mediator is usually paid on the basis of an hourly rate or occasionally on a per diem rate basis. The mediator usually notifies the parties as to the applicable fees and billing policies well in advance of the scheduled mediation. Attorney’s for the parties are invoiced and payment is made by the attorney directly to the mediator.

DANIELSON GEOGRAPHICAL COVERAGE AREA?

Danielson Mediation and Arbitration will cover the following Arkansas Counties:
Benton, Carroll, Washington, Madison, Crawford, Franklin, Sebastian, and Logan. Special arrangements can be made for coverage outside these counties but, in general, it would only be practical for large multi-party cases because of the increased travel time involved.

 

DAVID A. DANIELSON
Attorney at Law - Mediation & Arbitration
4491 W. Sandingham St.
Fayetteville, AR 72704
(479) 387-5544
Email: daviddan@DanielsonMediation.com