Mediation is a form of alternative dispute resolution in which the parties meet with a trained and impartial third party with the goal of reaching a settlement. Mediation can be an informal meeting, with court proceedings pending or to avoid going to court at all. It is less rigid than litigation and arbitration, allowing for more creative techniques that would not be acceptable in other settings. Cases suitable for mediation are those that do not involve complex procedural or evidentiary issues, such as personal injury, construction, workers compensation, divorce, domestic relations, and employment.
Mediation is often a voluntary meeting. However, there are instances where a court may order you to attend mediation.
- Domestic Relations: Attending mediation early can reduce hostility and get some matters solved between the parties. Mediators often have education or experience in the complex issues of a DR case, such as taxes, pensions, bankruptcy, or other financial issues. This can help the parties to come to a decision together, rather than relying on the court to make decisions for them.
- Probate: Probate disputes can also be time consuming and highly emotional. Familial relationships and past issues can take a toll on decision making. Mediation can guide families to make the best possible arrangements and resolutions for families.
Mediation offers many advantages over having the Court rule over issues between the parties.
- Affordability: If you have an attorney, there is not as much preparation for mediation as there would be for trial.
- Timely Resolution: Mediation can often be scheduled much more quickly, and the matter can be solved in a much more efficient manner.
- More Satisfying Resolution: Parties often feel more satisfied and have greater ownership in solutions which they have a role in creating.
- Confidentiality: While arbitration and court proceedings can become public record, mediators cannot repeat or report what is said to any other party.
The meeting is held in a mutually neutral place, such as the office of the mediator. The parties can choose to be in the same room to carry out a discussion, or the mediator can act as the messenger, going back and forth between the parties to relay their disputes. If a settlement cannot be reached, there are no legal penalties. In fact, the mediator’s role is not to reach a decision, it is for the parties to reach their own decision.
To prepare for mediation, provide a pre-conference statement, also called a confidential settlement statement, ten days prior to the scheduled meeting. The pre-conference statement should include a list of issues you want resolved during mediation, your needs and interests in relation to the disputes, your understanding of the needs and interests of the of the other parties, and session copies of any court orders, financial documents, and any other information pertaining to the dispute.
Arbitration is another type of alternative dispute resolution where parties can work out disputes without going to court. An impartial third-party arbitrator is chosen to listen to the case and make a decision. While this meeting takes place outside of a courtroom, it is very similar to a court hearing. Each side presents their testimony and evidence, and the arbitrator will decide how to resolve the dispute. Unlike mediation, an arbitrator’s decision is legally binding.
Often, arbitration is used because it is in a clause of a contract between parties. Small business, individuals, and business-vs-business cases commonly use arbitration to resolve breaches of contract. There are some advantages to arbitrating. If you are in a technical industry, such as architecture, engineering, or in the medical field, it may be to your advantage to have an arbitrator that is knowledgeable in that field, rather than a judge with no expertise. If you want to prevent a class action suit, arbitration could be a simpler route.
Preparing for arbitration is much like preparing for a court case. You should locate and preserve any relevant documentation that may support your claim. You should obtain statements from witnesses and identify and retain any experts that will support your case. One party may initiate arbitration via a clause in a contract, or both parties can decide that arbitration is a more suitable approach to resolving their dispute.
When one party decides to invoke the arbitration clause, they should have a Demand for Arbitration. This should summarize the nature of the dispute, the resolution they see fit, names and addresses of all parties, and the full arbitration clause, quoted from the contract. After this has been filed, the respondent should file an answering statement. This statement should include counterclaims and any objections to jurisdiction or validity of the arbitration.
Arbitration will conclude with an informal hearing, where witness statements are read, and evidence is presented. The arbitrator will then make their legally binding decision. The parties can attempt to reverse an arbitrator’s decision in court, where the proceedings would become part of a court record.