What is Mediation
o Mediation is a process that brings parties together to resolve their differences through discussion and problem-solving. The goal is to achieve "win-win" solutions. The mediator is a neutral third party who helps facilitate the dialogue but is not the final decision-maker. Mediation can resolve disputes quickly and effectively without the expense, delay and anxiety of litigation. If parties arrive at a mutually satisfactory resolution, mediators may assist in drafting Memorandums of Understanding, comprised of the terms to which the parties have agreed. These MOU’s can then be submitted to the court. If mediation is unsuccessful and an agreement cannot be reached, parties may still pursue all legal remedies, including private lawsuits. Parties reach agreement freely, voluntarily and on the basis of informed consent.
o Mediation provides a forum for controlled and purposeful discussion, and an atmosphere in which parties gain understanding, become understood, and work together to explore options for resolution. By resolving disputes in mediation, parties determine for themselves what is important and, ultimately the outcome of the situation.
o Mediation sessions are confidential and voluntary for all parties. The process typically involves one or more meetings between the disputing parties and the mediator. It may also include one or more confidential sessions between individual parties and the mediator (a “caucus”). As a voluntary process, either party may withdraw at any time.
o During mediation parties may choose to be represented by an attorney.
o By offering a safe environment for parties to express their needs and interests, discuss options and reach a mutually agreeable resolution, mediation can preserve important relationships.
o Mediation requires work. The participants must gather the necessary information to make informed decisions. They must let go of the idea that someone has to win and someone has to lose. They take responsibility for their decisions. It is not easy, but the benefits are well worth the effort.
What is a Mediator
o A mediator is a skilled neutral who assists the disputing parties in communicating, in clarifying issues and understanding interests, and in exploring options and outcomes often unavailable through litigation. Such carefully tailored and confidential outcomes are especially valuable in situations where a continuing relationship is either unavoidable or desirable, such as disputes dividing families, within workforces, between commercial enterprises or interests, e.g., owner/builder/architect, neighboring landowners, homeowner associations, etc.
o A mediator does NOT decide the outcome. Unless the parties freely agree, there will be no final resolution.
o Mediators may not give legal advice or interpret the law. They can refer parties to impartial outside experts in legal, financial or other fields to address specific questions or issues that might arise.
Benefits of Mediation
o Mediation works not only because it focuses on the parties own interests and agendas, but also because it provides the opportunity for parties to move beyond disputes efficiently and chart their own future. The following are some specific benefits:
▪ In resolving or narrowing areas of disputes through mediation, parties save an enormous amount of time, energy, and expense associated with protracted conflict and litigation.
o CONTROL & EMPOWERMENT
▪ Parties who negotiate their own settlements have more control over the outcome of their dispute. Gains and losses are more predictable in a mediated settlement than they would be if a case is arbitrated or adjudicated.
▪ The participants, with the mediator’s help, define the issues they need to resolve and decide how they will resolve them. They are responsible for creating solutions that are fair and right for them. They take control over their decisions instead of turning it over to a judge, arbitrator or jury.
▪ The participants focus primarily on how they want their future to look, not what happened in the past.
o QUALITY OF SETTLEMENT
▪ Parties who have reached their own agreement in mediation are generally more likely to comply with its terms and fulfill commitments associated with that agreement than they are with judicially imposed resolutions.
▪ Parties are generally more satisfied with solutions that have been mutually agreed upon, as opposed to solutions that are imposed upon them by a third party decision-maker.
▪ Mediated settlements tend to hold up over time, and if a later dispute arises, the parties are more likely to utilize a cooperative forum of problem-solving to resolve their differences than to pursue an adversarial approach.
o RELATIONSHIP STATUS
▪ Many disputes occur in the context of relationships that will continue over future years. A mediated settlement that addresses all parties' interests can often preserve a working relationship in ways that would not be possible in a win/lose decision-making procedure. Mediation can also make the termination of a relationship more amicable.
▪ The participants communicate directly rather than through their representatives and can learn to communicate more effectively with each other.
▪ Besides the signed agreement (Memorandum of Understanding), which can be entered into the court as a binding contract, any communication that takes place in mediation is confidential.
▪ In an era when it may take as long as a year to get a court date, and multiple years if a case is appealed, the mediation alternative often provides a more timely way of resolving disputes. When parties want to get on with business or their lives, mediation may be desirable as a means of producing rapid results.
o COMPREHENSIVE & CUSTOMIZED AGREEMENTS
▪ Mediated settlements are able to address both legal and extralegal issues. They also often cover procedural and psychological issues that are not necessarily available to legal determination. The parties can tailor their settlement to their particular situation.
▪ In hearing and being heard in the mediation forum, parties gain the understanding of another point of view, and an enhanced opportunity to be heard and to be understood themselves.
The Mediation Process
o Mediation is usually conducted in several sessions that last two or more hours each. The mediation sessions are structured to help the parties reach settlement. For example, the mediator and the parties may meet together, or the mediator may see the parties in separate conference rooms if it is beneficial to avoid contact. The parties may have their attorneys present, if they choose.
o In the first mediation session, the mediator makes a brief opening statement and explains the process. The mediator may also ask the participants to set “ground rules” that will make the process move more smoothly. With the assistance of the mediator, the participants identify the issues they wish to discuss and set an agenda. The mediator then helps them discuss the issues, separate the emotions, and identify options for settlement.
o The agreements reached in mediation are reflected in a memorandum drafted by the mediator or an agreement drafted by the attorneys. The parties review the memorandum to see that it accurately reflects their agreements and that it is fair and equitable. It may be necessary to renegotiate certain provisions in subsequent meetings. Settlement is reached when the parties individually agree on all provisions, sign the agreement, and, if necessary, submit it to the court.
Types of Cases Appropriate for Mediation
o Mediation means creative solutions. In other words, mediation is appropriate for all types of disputes including the following:
▪ Divorce, Custody and Child Support
▪ Prenuptial and Postnuptial Agreements
▪ Landlord / Tenant
▪ Partnership Formation and Dissolution
▪ Family Business
▪ Civil Cases
▪ Contractual Agreements
▪ Elder Care
▪ Neighbor Disputes
▪ Community Matters
▪ Workplace Conflict
o Court-Ordered or Voluntary Mediation
▪ Court-Ordered: A judge has ordered parties to attend mediation and to make a sincere effort to resolve the case or disputed issue.
▪ Voluntary: Parties decide they want to attend mediation voluntarily to resolve conflicts.
Preparing for Mediation
o Choose a mediator who knows the law and has had experience in mediation. In Colorado, mediators do not have to be licensed or certified. Therefore, you must take care to choose a mediator who has knowledge and experience. You may want to interview the mediator before making a choice.
o Be an informed participant. In order to assess the fairness of a settlement, you must understand the facts and the legal issues of your case. Whether a contract is being negotiated or a relationship is being dissolved, people in mediation make decisions that affect their lives. Accurate and complete information leads to decisions that stand up over time.
o Concentrate on your needs and concerns. Mediation is easier and more successful if the parties are able to identify their interests rather than their positions. A “position” is something that has been decided. An “interest” is the reason why the person decided. Often people find they have interests in common even though their positions may be in conflict.
o Identify personal issues that may create problems in mediation. These problems can be accommodated in mediation. They should be discussed with your attorney and the mediator before the process begins.
o If needed, retain an attorney who can act as an advisor in mediation. Hiring an attorney does not mean that your case will result in an angry and expensive court battle. Competent attorneys can serve as both advisors and advocates if the case does not settle.
o Remember, mediation is a process that provides a way to reach resolution. Mediation usually requires several sessions. During those sessions, agreements will be discussed, reviewed, and revised until a solution is reached that is satisfactory to all parties. You should be prepared to step away from the mediation sessions, think about what has been discussed, review the tentative agreements and renegotiate any unacceptable provisions.