A. What is Mediation?
i. A neutral third party facilitating discussions between parties to a dispute for the purpose of reaching a mutually satisfactory agreement.
ii. Two general types of mediation:
(1) Advisory Mediation. The mediator evaluates and advises the parties based on the mediator’s knowledge and experience.
(2) Interest-Based Mediation. The mediator assists the parties to develop options to satisfy their interests rather than evaluate their options.
iii. Mediation permits the parties to:
(1) Exchange information and documents confidentially.
(2) Understand each party’s perception of the dispute.
(3) Express their own interests, goals and values.
(4) Discuss and develop settlement options.
(5) Resolve disputes.
iv. Key Characteristics of mediation:
(4) Parties participate significantly.
(5) Neutral facilitators (mediators) assist the parties in reaching agreement.
B. Why Mediate?
i. To preserve the parties’ relationship.
ii. Expedite resolution of disputes.
iii. Minimize cost of resolving disputes.
iv. Avoid the trauma, stress, anxiety, cost and risk associated with litigation.
C. A Day in Mediation:
i. Introduction – mediator explains the groundrules and provides an overview of the process.
ii. Isolating Issues and Fact Finding – mediator works with the parties, together and apart, to identify substantive issues and separate emotional issues in an effort to determine where the parties overlap and differ.
iii. Creating Options – mediator assists parties to develop settlement options.
iv. Negotiating and Decision Making – mediator facilitates the parties’ negotiations and decision making process.
v. Reducing the Agreement to Writing – the parties’ settlement agreement should be put in writing, which can be prepared by the mediator and should be reviewed by the parties’ legal counsel.
D. Preparing for Mediation:
i. Submit a confidential mediation statement.
ii. Have a decision maker with authority present.
iii. Be prepared – know your case (and your opponent’s case) inside and out.
iv. Set aside enough time – typically one full day.
v. Know Your BATNA – “Best Alternative to a Negotiated Agreement”.