THE MEDIATION PROCESS
WHAT IS MEDIATION?
Mediation is a voluntary, collaborative process in which an impartial third party, the mediator, facilitates communication and negotiation between parties to assist them in reaching a voluntary agreement to resolve their dispute. Although the mediator can influence the course of negotiations, the power to decide the outcome lies entirely with the parties. This is different than arbitration in which the parties choose a neutral third party to hear evidence and reach a binding decision, much like a judge or jury.
HOW DOES MEDIATION WORK?
The key to mediation is flexibility. The precise format of the mediation itself may differ depending on what best suits the parties. The mediator will work with the parties to decide on the best structure for the mediation. It may be useful to begin the mediation with a joint session including all the parties and, if applicable, their attorneys. Following introductions, the mediator explains the ground rules that will govern the process. Each party will then be given the option of presenting a brief oral overview of its position.
Most mediation sessions will include a series of separate meetings between the mediator and each party. During these separate meetings, the mediator meets with each party to discuss settlement goals, evaluate the strengths and weaknesses of each party’s position and explore potential trial outcomes if the matter cannot be settled. The mediator works with each party to formulate constructive settlement proposals and responses. All matters discussed during these separate meetings are kept confidential unless the party expressly authorizes the mediator to disclose them to the other side. The mediator continues separate meetings with each party with the goal of reaching a final settlement.
If a settlement is reached, the parties sign a memorandum of understanding setting out the terms of the settlement. After the mediation has concluded, the parties or their attorneys customarily draft a final written settlement agreement which the parties sign.
WHAT ARE THE ADVANTAGES OF MEDIATION?
Mediation saves money.
Resolving a case through mediation is generally much less expensive than going to court. This is particularly true if the mediation is held early in the litigation process, before the parties rack up big legal bills for pre-trial discovery and motion practice. If the mediation results in a settlement, the parties will avoid the substantial additional cost of preparing for and going through a trial.
Mediation saves time.
A typical civil case filed in a Massachusetts court can take up to two years or more to get to trial. Parties can generally reach a resolution of their dispute much sooner through mediation.
Privacy and confidentiality are assured.
Mediation sessions are private, not public like court proceedings. All discussions that take place in mediation are confidential, and the parties are precluded, by written agreement and by law, from disclosing them outside of the mediation. If the case does not settle, nothing said during the mediation can be used later in court.
The parties control the outcome.
If the mediation results in a settlement, the case is over. There is no trial and no appeal. Most importantly, the parties decide the outcome themselves rather than face the uncertainty of leaving the decision to a judge or jury.