Mediation

1. What is mediation?

Mediation is a process in which the parties to a dispute (and their lawyers and others, as needed) meet with a trained, neutral mediator. The mediator meets with all sides, together and separately, and uses a variety of techniques to help the parties come to resolution. The mediator has no power to decide the dispute if the parties do not agree. Mediation sessions are voluntary, private and confidential. Some have called mediation “managed, super-charged negotiations.”

2. How long will it take to set up a mediation?

A mediation may be set up in a few days. The individual mediator can schedule it with the parties or the American Arbitration Association (or other institutional provider) will assist the parties. Depending upon the schedule of the chosen mediator, a mediation session might begin within a few weeks of when the parties agree to mediate.

3. How can I get the other side to go along?

The same advantages that appeal to you about mediation will likely appeal to the other side: saving time and money; maintaining valued relationships; getting the assistance of an experienced mediator; speaking and listening to the other side, face to face; having the ability to create a resolution outside the boundaries of what a court or arbitrator could do. The American Arbitration Association staff will assist you in bringing the other side to mediation. Frequently, hearing about mediation from this old, respected organization is more persuasive than hearing about it from the other side.

4. How long do mediations normally take?

Mediations take, on average, about five hours. But, averages are not helpful here. Mediation takes as long as the parties need. Since any party can leave at any time, each party can monitor the progress of the mediation, and change it (or end it) if it becomes unproductive.

5. How is this different from arbitration?

In arbitration, the arbitrator normally has the power to decide the dispute, and his/her decision will be legally binding on the parties. In mediation, the mediator’s only power is the power of persuasion. If resolution comes, it will be because all the parties have agreed to it.

6. We've tried to negotiate a settlement and got nowhere; why should I think mediation will have a different result?

The short answer is because mediation usually does result in resolution. Check with people who have used it. The long answer would be a book-length treatment of mediation techniques. If you have the time and interest, see the Mediation chapter in my book, Controlling Conflict: Alternative Dispute Resolution for Business, published by CCH Incorporated, Chicago, Illinois 1996.

7. Whom should I bring to the mediation from my side?

Someone with the power to bind the party should always attend. In addition, that person should be accompanied by whatever scientific, technical or legal experts are needed.

8. What effect does mediation have on my arbitration or lawsuit if no resolution is reached?

Mediation usually has no bad effects on a pending arbitration or lawsuit. The discussions in mediation are made confidential by law, and cannot be introduced into evidence at a later arbitration or trial. The mediator usually may not be called to testify unless all parties agree.

9. Won't my side look weak if I suggest mediation to the other side?

You will not look weak to sophisticated parties at all, and you will no longer look weak to unsophisticated parties when they learn what mediation is. An equally valid conclusion is that you are suggesting mediation because you are confident of the strength of your position.

10. Why do I need the American Arbitration Association?

You don’t, if all parties agree to mediate and agree on who the mediator should be. Since mediation is voluntary, however, it is important that all parties perceive the process to be neutral, and not favoring one side or the other. The American Arbitration Association, with it 75+ years of experience, and reputation for neutrality, administers the mediation impartially, provides it facilities as the “neutral ground” often important to disputing parties, and provides the parties with a list of proposed mediators suited to their dispute.

11. Can I learn the backgrounds of the mediators before deciding?

Of course, you can and should. Any mediator will send his/her biography, or the nearest office of the American Arbitration Association will send you the biographies of a number of mediators who would be suitable for your dispute. The mediator should also be willing to provide you with references.

12. Can I talk to a mediator before deciding?

Yes! Most mediators would be pleased to have a preliminary conversation about mediation and your dispute. Please keep two things in mind, however: (1) any lengthy conversation with a prospective mediator should include a representative of the other side; (2) mediators do this for a living, and may charge for their time if the initial conversation exceeds 15-30 minutes.

13. How much will it cost?

The mediator is compensated by the parties at his/her agreed rate. Some charge by the hour, others by the day. The cost of the mediator will depend on how long the mediation session(s) last. Normally, the parties share the costs equally. In employment mediations, the employer frequently advances the cost of mediation. So, in a two-party dispute, a party will only have to pay 50% of the fees.

14. Whom do I contact to find out more?