WHAT IS MEDIATION?
Mediation is a confidential process to resolve disputes with the guidance of a specially trained neutral and impartial third party (the “mediator”), who assists the parties in addressing their interests so they can work toward a solution to the dispute that is acceptable to all parties in that it may result in a binding agreement that addresses the needs and interests of the parties.
IS THE MEDIATOR LIKE A JUDGE?
No. The mediator is not a judge. A mediator does not declare a winner or loser, make findings of fact, or rule on issues of law.
MAY THE MEDIATOR FORCE THE PARTIES TO SETTLE?
No. The parties must decide to settle their dispute and a mediator must not coerce the parties to reach a settlement.
HOW IS MEDIATION DIFFERENT FROM A TRIAL?
Unlike a judge at a public trial or an arbitrator in a private trial, the mediator does not decide the outcome of the parties’ dispute. Mediation is successful because it is a private, confidential, non-adversarial, and less formal and restrictive process that allows the parties themselves to create their own solutions to a dispute taking into account their own goals and interests to reach a negotiated settlement with certainty
In other words, mediation enables the parties to take control of the dispute rather than to put the dispute before a judge, jury, or arbitrator that will decide the outcome of a dispute without regard to the true interests of the parties. Mediated settlements, crafted by the parties in collaboration with their legal representatives, often offer a broader range of settlement options and outcomes than may exist in a formal court setting that is bound by the restrictions of legal remedies, law, and rules of evidence.
WHAT ARE THE BENEFITS OF MEDIATION?
- Unlike going to trial and having strangers decide the outcome of a dispute, mediation provides a forum for the parties to achieve acceptable results and mutual satisfaction.
- Mediation allows the parties to be in charge of their dispute and make the decisions for themselves, rather than have “solutions” imposed by third-parties.
- Mediation is efficient and economical in that it enables the parties the option of resolving a dispute short of expensive trial or extended litigation, and to receive the benefit of settlements without lengthy delays, such as appeals, collections of judgments, and protracted financial or emotional costs.
- Mediation is a confidential process and generally provides for confidentially in the process and, where appropriate, in the mediated agreements.
- Mediation can promote better communication and understanding between the parties to the dispute. This is especially important when there are on-going personal or business relationships between the parties.
HOW DOES THE MEDIATION UNFOLD?
Every mediation is different and the process is flexible. Good mediators use the best format for a particular case. Generally speaking, the phases of a mediation are as follows: the mediator’s introduction; opening statements in joint session by counsel and the parties; private sessions (called the separate caucus); additional joint sessions (if necessary); and drafting a memorandum of agreement if settlement is reached.
WHO SHOULD ATTEND THE MEDIATION?
Any necessary decision-maker should attend. Should there be any questions regarding who should attend, counsel should arrange for a conference call with the mediator before the session.
MUST I HAVE A LAWYER AT MEDIATION?
No. It is not necessary that you have a lawyer present at mediation, however, since the mediator needs to remain neutral, the mediator cannot and will not give you legal advice. Resolution of a dispute often involves making important legal decisions, and you may choose to have a lawyer present to advise you on these issues or to review any mediated settlement agreement.
IS MEDIATION RIGHT FOR YOUR DISPUTE?
Mediation is not appropriate for every dispute. For example, a dispute (such as a constitutional issue) that requires a binding court decision may not be an appropriate dispute for negotiated settlement. Mediation works best when the parties are willing to express their positions and interests in a forum that requires respect for the other party’s interests. The mediation process requires give and take and willingness for each side to try to address the interests of the other party in order to reach a mutually beneficial compromise.
Even if mediation does not result in a total resolution of the dispute, it often results in better understanding, a narrowing of the disputed issues, and opportunities to generate new options to resolve the dispute.
IS MEDIATION SUCCESSFUL IN RESOLVING DISPUTES? While there can be many levels of success, one measure is how often mediation results in a binding agreement that totally ends the parties’ dispute short of more litigation, trial and appeals. At Lakeside Mediation, our records reflect a settlement of almost 90% of the cases mediated. Thousands of satisfied participants in mediations consider this successful. So do we.
HOW LONG DOES A MEDIATION TAKE?
In all but the most complicated and complex disputes, mediations generally are conducted and settlements reached in one day. Many mediations, especially of smaller disputes, will take only a few hours. Mediation is an extremely efficient process for resolving disputes.
IS MEDIATION EXPENSIVE?
The experienced and successful Lakeside Mediators each charge fair and competitive rates for their services. When compared to the cost of litigation, trial, and appeals, mediation is not only efficient, but economical as well. While even the smallest litigation and trial can cost many thousands of dollars, and the more complex matters can cost hundreds of thousands of dollars, mediations are generally paid for by the parties splitting the “flat fee” of the mediator.
DO YOU HAVE MORE QUESTIONS ABOUT MEDIATION?
Feel free to call or e-mail Lakeside Mediators if you have additional questions. We want you to feel comfortable and knowledgeable about the process, and we welcome the opportunity to answer your questions about the process or your specific dispute.
The award winning video “A Guide to Mediation” was produced by the mediators at Lakeside Mediation Center in order to help people prepare for their mediation by learning about the process. The video is a combination of narratives that explain the different stages of a mediation spliced between realistic scenes from a mock mediation that provide the viewer with an example of how an actual mediation might look and feel.
Lakeside Mediation Center has donated copies of this video to every branch of the Austin Public Library so that you can view it for free at your convenience. Copies are also available for purchase through this website.