QUESTIONS LITIGATORS ASK ABOUT MEDIATION - Dispute Resolution Journal - Vol. 55, No. 2
The author is a commercial litigation attorney in the San Francisco Bay Area and has frequently represented financial institutions in mediations.
Originally from Dispute Resolution Journal
Is there any need for mediation? What is its down side? Who pays the mediator, and how much does it cost? Who makes the first settlement proposal? How do you find a good mediator, and what questions should you ask before choosing one? These are just a few of the basic but valuable questions that are answered in the following article.
Lawyers are people who deal with disputes and hopefully resolve them. Legal scholar Karl Llewellyn wrote this description in Bramble Bush, a book often recommended to beginning law students. Legal literature abounds with strategies and techniques to help lawyers resolve disputes. In recent years, mediation has become a popular alternative to traditional litigation. This article briefly addresses questions that litigators frequently ask about mediation. Some of these questions could serve as topics of discussion for an entire seminar. The answers suggested here can serve as the starting point for such a discussion.
WHAT IS MEDIATION?
Mediation is a meeting where the participants try to resolve their disputes. A neutral party, the mediator, presides over the meeting. If the parties reach a resolution, they may by agreement make it binding. One key feature of mediation is that the moderator remains neutral throughout the meeting. This distinguishes mediation from judicially supervised settlement conferences where the judge may actively pressure the parties to settle. Another key element of mediation is that no resolution is binding unless the parties agree to make it so. This ensures that there are no losers in the sense that there are winners and losers in conventional litigation. Until recently, all mediation was also voluntary. Some courts now compel parties to submit to mediation as a preliminary to arbitration or litigation. Whether compelled mediation will improve the court system, or corrupt the mediation process, remains to be seen. A possible problem in mandatory mediations is that one or more parties may not want to be there and thus may not cooperate in the process.