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In this Q&A, attorney Bob Frederick provides an overview of mediation, including when to pursue mediation, how it works and what happens if the parties fail to reach a resolution.
Q: What is mediation and how does it work?
Bob Frederick: Mediation is a confidential, voluntary process used to resolve disputes with the assistance of a neutral third party, called a mediator. Through mediation, the involved parties can resolve legal issues outside of traditional litigation in court. The mediator acts as a guide, leading the parties through the process and outlining their interests, concerns and possible solutions.
During the initial mediation meeting, the mediator outlines the process and explains the rules to both parties. Once an understanding is reached, the mediator will obtain position statements from all parties regarding:
· Standing on each of the issues needing resolution
· What are the benefits and drawbacks
· Information that must remain confidential
Subsequent meetings are generally held privately between the mediator and each party to discuss specific issues and facilitate negotiation.
If the parties reach an understanding, it can be formalized into a legally binding contract or agreement.
Q: How does mediation differ from other alternative dispute resolutions?
BF: Mediation differs from other alternative dispute resolution (ADR) methods in numerous ways.
During mediation, the mediator serves as a neutral third party who facilitates the process and provides guidance to disputing parties but generally does not make decisions on the outcome of a case. In other ADR methods, the neutral third party serves as the decision-maker and may decide how the case is ultimately resolved.
In addition, mediation is voluntary, meaning that all parties decide to participate in the process willingly. The parties are also not obligated to reach an agreement. Other ADR methods may involve decisions that the parties are required to follow.
Mediation tends to be more flexible and informal than other ADR methods, which may follow more structured and formal procedures.
Q: When and why should I use mediation?
BF: It is best to use a mediator when you can’t resolve a problem—whether the conflict is caused by the attorneys or the clients. Mediation is often much faster, cheaper and more efficient than going through the courts – especially considering a ruling may be appealed.
Litigation can be a costly and time-consuming process, often resulting in unpredictable outcomes. Mediation provides a more cost-effective alternative, saving legal fees, court expenses and can prevent potential business disruption.
Pursuing mediation can be useful in a number of cases, including LLC dissolution and liquidation, criminal cases, property division, debt allocation, custody disputes, class actions, water law and real estate issues, among countless others.
Mediation enables both parties to engage in open communication in an amicable, collaborative environment. This encourages good will between the parties and helps those involved preserve valuable relationships.
In addition, mediation provides more control over the outcome. Mediators facilitate constructive discussions and allow clients to explore creative solutions that meet their needs and interests. Unlike court-imposed decisions, mediation allows for customized agreements that can address specific concerns and ensure future success.
The flexible nature of mediation may remove some of the stress that comes with litigation or more formal ADR methods.
Q: What should I look for in a mediator?
BF: When seeking a mediator, it’s important to find someone who can effectively facilitate communication and resolution. They need to understand the concerns and interests of all parties.
A good mediator can help the parties understand each other’s point of view while remaining impartial. They should not take sides or show favoritism toward any party involved in the dispute. Mediators should also be good listeners and ensure that everyone’s viewpoints are heard and understood.
In addition, your mediator should be empathetic and understanding, building trust and rapport with the parties and making them more willing to engage in the process.
Though a mediator is not the ultimate decisionmaker in disputes, they can significantly impact the success of the mediation process. It’s important to ensure your mediator has these important qualities to handle your dispute effectively.
Q: What happens if mediation fails to reach a resolution?
BF: If mediation fails to reach a resolution, there are still several options available. What happens next will depend on a variety of factors, such as the nature of the dispute and agreements made between the parties. The parties may return to negotiations outside of the mediation process, utilizing insights gained from mediation to continue discussions. The parties may also pursue other alternative dispute resolution methods, move to litigation or review settlement options.
It’s important to continue to consult with your attorney both throughout the mediation process and after. If mediation fails to reach a resolution, your attorney can guide you through available options and help you navigate potential next steps.
The mediation attorneys at Kennedy Berkley are happy to answer your questions and support you in your mediation matters. Bob Frederick may be contacted directly at rjfrederick@kenberk.com or through our main line at (785) 825-4674.