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:
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 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:
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: