Litigation (where the parties go to court and allow a judge and/or jury to decide the outcome),
Arbitration (where the parties or the court, with the parties concurrence, appoints a third person or panel to decide the outcome), or
Remaining in conflict, if no case has been filed in court.
#2: What Are The Advantages to Mediation?
You Control the Outcome - In mediation, no decision is imposed on you. If you and your attorney cannot reach an acceptable and satisfactory agreement with the other party(ies) and his or her attorney, the case is not resolved.
Save Time and Money - Mediation can frequently resolve disputes more quickly and at a lower out-of-pocket cost than either litigation or arbitration, making it economically more efficient.
Minimize Disruption - By shortening the time in conflict, you reduce the interference with, and disruption of, your daily work and personal schedules, making it less burdensome than litigation or arbitration.
Creative Solutions - Judges, juries and arbitrators are limited in devising remedies, but in mediation, the parties, mediator and counsel are free to design a solution that best meets the needs of all parties.
Confidentiality - Legal provisions prevent the use of information disclosed during mediation as evidence if the case should later go to trial. You can instruct the mediator what to disclose to the other side and what to maintain in confidence.
Alternatives are Not Foreclosed - If the case is not resolved in mediation, you retain the alternatives outlined in response to FAQ #1, above.
#3: How Do We Get Started?
This is YOUR mediation. My goal is to facilitate a constructive and meaningful process to resolve disputed issues fully and efficiently. Please review the following guidelines and raise any questions, concerns or suggestions you have.
Confidentiality: All persons present at the mediation will be asked to sign a confidentiality agreement. (If you have proposed changes to the agreement, please advise me during the pre-mediation teleconference.)
Scheduling: Either party/attorney can contact the mediator for available dates and times, potential conflicts of interest, etc. The parties/attorneys should agree on a set of available dates and call me to get on my calendar. At that time, I will ask for a preferred contact method to confirm the teleconference and mediation (e.g., phone, e-mail, letter, fax).
Pre-Mediation Teleconference: It is my preference to speak with the parties/attorneys in a joint teleconference before the mediation. (If the parties prefer, the conversations can be held separately.) The pre-mediation teleconference is a good time to discuss:
Scheduling issues, including time and location of the mediation.
Advance deposit, and refund of the difference or payment of the balance.
Briefing issues, including timing and whether or not the briefs will be exchanged. (I prefer at least a week to prepare for the mediation.) If the briefs are to be exchanged, confidential material can be submitted to the mediator separately for return or destruction at the conclusion of the mediation.
Representation issues, including a discussion and agreement by the parties in dispute as to whom is necessary for a meaningful resolution. (If your mediation involves a litigated case, applicable rules dictate who must be present unless excused.)
Confidentiality issues, such as noted above with respect to briefing.
Briefs: Briefs (facts and legal arguments) should generally not exceed 10 pages, plus attachments (authorities and documents). Key cases, statutes (authorities) and documents should be attached to the brief. The brief should include:
The relationship of the parties.
The time period involved.
The amount and issue in controversy.
Your desired outcome.
The facts (supported by evidence) and law that support your desired outcome.
Settlement Agreement: If an agreement is reached, the mediator may assist counsel for the parties in reducing the agreement to writing.