At our firm, James R. Becker, Jr., is a Rule 31 listed mediator. This means that he has taken the courses and has the training and experience to serve as a mediator in all civil cases, except family law cases.
What is mediation?
Mediation is a form of what is known as “alternative dispute resolution.” It is really just a form of negotiation in which a third party, the mediator, goes between the parties to help them reach a resolution of their dispute. It is the only form of resolution which allows the parties, instead of a judge, jury or arbitrator, to decide the outcome. At the Becker Law Firm, we believe very strongly in the benefits of mediation. While we recognize that not every matter is right for mediation, experience has taught that the benefits of mediation are significant.
Some of the central concepts of mediation are key to making it work.
- Mediation is confidential. Everything that occurs in the mediation is confidential. No one can talk about or use what was discussed during the mediation. This allows the parties to more freely discuss their concerns and issues with the mediator.
- Mediation is voluntary. Mediation is voluntary in the sense that you cannot be forced to accept any term of agreement or even reach an agreement. It is true that a court can order you to go to mediation, and to do so in good faith, but the outcome of mediation is completely voluntary. If there is some aspect of the agreement you do not like, you are free to reject it. Unlike the outcome of a lawsuit, you craft the outcome of a mediation. Remember, however, that there are two sides to every dispute and the other side has all of the same rights as you.
- Mediation is controlled. This means that the parties control the outcome. You may be guided by your lawyer and the mediator, but the outcome is ultimately in your control and this can be very powerful. An example of this power can be found in an employment case I recently negotiated. The employee was upset about not getting a promotion and claimed that it was race discrimination. If the employee was successful, the resolution in court would have been to award her the position. Instead, we were able to work out a resolution in which the employee moved to a different position with the same pay, but a more favorable schedule. The employer kept a good employee, the employee got the pay she was seeking and a better schedule. This outcome would not have been possible in a lawsuit.
- Mediation is a process. This means that it is not something in which you go in, make a demand and then walk away. You must go into the mediation with the mindset of making a good faith effort to settle. Mediations normally take half to a full day because there is give and take on both sides. It is not quick. By working through the process, you come to understand the positions, the issues that are motivating each side and how those positions and issues can be satisfied.
- Mediators are neutral. The mediator does not take sides in the case. If you think of a lawyer as representing you, the mediator represents the dispute and its resolution. That is the only objective of the mediator – to help the parties get their case resolved.
- Mediation is successful. Mediations which are conducted with trained mediators tend to settle between 70% - 80% of the cases in which they are conducted. My personal experience is that mediation settles closer to 90% of the cases in which it is conducted. Ultimately, the parties are looking for a resolution and mediation has a very high success rate.
What happens during mediation?
Mediations can occur any number of different ways. There is no set pattern and no right or wrong way to conduct a mediation. What I am describing is a usual mediation as I, and the vast majority of mediators with whom I work, conduct them.
Typically the mediation occurs in an attorney’s office. Each side can have their attorney present with them and there is a mediator. In employment cases, sometimes the employee will also have a family member (husband or wife) present, but that is not usual. In family law cases, it is usually only the parties themselves. The process is informal and typically starts with the mediator’s introduction and a brief explanation of the process. After the introduction, the mediator will either ask for each side to make a brief opening statement, setting out their respective positions. Once the openings are completed, the parties are separated to different rooms and the mediator moves back and forth between the rooms talking to the parties and carrying offers and counter offers.
Will the other side be able to bully me?
No. If you feel as if you are being bullied, you have the right to leave and ultimately, you have an absolute, unqualified right to reject any offer that is being presented to you. This means that you cannot be forced to accept a deal if you believe that you are being bullied.
Also, most mediators enforce rules of civility on their mediations. Civility can vary from mediator to mediator, but often this includes requirements that the parties not engage in bully or aggressive behavior. In most cases, there is no opportunity for this because the parties are kept in separate rooms for the duration of the mediation.
Will the mediator take sides?
No. However, most non-lawyers involved in mediation tend to think that the mediator is taking sides. What you need to realize in mediation is that mediator will come into your room and tell you bad things about your case or your position. Then the mediator will go into the other room and do the exact same thing to the other side. The mediator’s objective is to get the parties to move towards one another and the most effective way to do this is to point out the weaknesses in each side’s position.
There is no lawsuit, can I still use mediation?
Yes. There is absolutely no requirement that there be a lawsuit in order for people with a dispute to use mediation. Mediation is a process for resolving disputes. This means is that all you need is a dispute and parties willing to sit down and talk about it. Many times this is particularly beneficial in the employment arena. By sitting down with a mediator and working through a dispute, the employee can retain employment and the employer can retain an experienced employee. Once litigation starts, some of this opportunity is lost.
In post-divorce family law matters, parties are usually required to mediate their differences prior to bringing the matter back before the courts. This provision is usually in most dissolution agreements and parenting plans or orders.
Do I need a lawyer?
Maybe. If you are dealing with legal issues, it is helpful to at least know the law and the strengths and weaknesses of your case before you go into mediation. If you are the employer, it is almost always going to be a good idea to either have a lawyer or a trained professional represent your interests in the mediation. A lawyer can help the parties with setting up the issues and ensure that each side stays on course with their offers and counter offers. Lawyers are not essential to the process, but experience has taught that their presence increases the likelihoo