What is Mediation and How Does It Work?
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Mediation is a common form of alternative dispute resolution that can be used at any point in a dispute.
Unlike a trial or arbitration, mediation does not involve anyone making a determination about who is right or who is wrong. Instead, a third party neutral called the mediator helps the parties find a resolution of the dispute. The opportunity to mediate can come up in a variety of circumstances. You may have a contract that requires the parties to mediate before bringing suit if there is a dispute. If you have a proceeding before the Massachusetts Commission Against Discrimination or the Equal Employment Opportunity Commission, they may offer the opportunity to mediate. Many courts will also offer and encourage alternative dispute resolution. Or your lawyer may recommend it at some stage in a civil lawsuit. What is the Difference Between Mediation and Arbitration? |
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Both are considered forms of alternative dispute resolution, but they are very different. In mediation, a third party neutral will try to help the parties reach a voluntary settlement. If the parties do not agree, the mediation is over and they go back to litigation.
In arbitration, the third party neutral is the arbitrator and serves as a judge. He or she will make a binding decision whether the parties agree or not.
In arbitration, the third party neutral is the arbitrator and serves as a judge. He or she will make a binding decision whether the parties agree or not.
Basic Rules of Mediation
Mediation is voluntary and confidential. Voluntary means that you do not have to do it, unless you have agreed to in a contract. Even if you have agreed to try mediation, you are not required to come to an agreement.
Confidentiality is an important part of the process. In Massachusetts, there is a statute that expressly states everything that is said in a mediation is confidential and cannot be used in the underlying court or agency proceeding. Even without the statute, most mediators will require the parties to sign a confidentiality agreement.
This is important because a good faith attempt to settle the dispute usually involves some amount of candor from both parties. The mediator will want you to speak freely without fear of giving the other side ammunition. The more information the mediator has, and the better sense of what happened and what is important to you, the more likely he or she will be able to guide you to a resolution.
Confidentiality is an important part of the process. In Massachusetts, there is a statute that expressly states everything that is said in a mediation is confidential and cannot be used in the underlying court or agency proceeding. Even without the statute, most mediators will require the parties to sign a confidentiality agreement.
This is important because a good faith attempt to settle the dispute usually involves some amount of candor from both parties. The mediator will want you to speak freely without fear of giving the other side ammunition. The more information the mediator has, and the better sense of what happened and what is important to you, the more likely he or she will be able to guide you to a resolution.
Who Should Attend a Mediation?
The decision makers on both sides should be in the room. If you are an individual plaintiff or defendant, that means you. If you are a company or organization that is party to a lawsuit, that means the person with the authority to agree to a settlement should be there. If you are working with an insurance company who is defending the suit for you, you should at least have access to you insurance adjuster during the session.
What Happens in a Mediation?
There is no one set way to do this, but most sessions follow a basic structure. First, the parties, the mediator, and the attorneys will meet in a joint session. Almost always this session will involve a description of the process, an introduction of the people in the room, and signing by all present of a confidentiality agreement. Frequently the neutral will give the parties a chance to make a brief opening statement, though not always.
After the joint session, the parties (and their attorneys) will usually be placed in separate rooms. The mediator will spend time with each side to talk about the case ad your settlement expectations, and to get authority to convey offers or demands to the other side.
The private sessions are an opportunity for the parties to discuss the case without the other side hearing. If you tell the neutral that you want something you have said not to be shared with the other side, they will honor that request.
Most often the first private session is with the plaintiff, but the neutral may decide to do it differently depending on what he or she hears in the opening session.
There is no limit to the number of times you will meet in private session. Either party can terminate the session at any time if you believe settlement is not likely. The only exception is if you have a contract that requires a good faith attempt to resolve the dispute. In that case, you should expect to go through at least one or two private sessions before declaring an impasse. If you are in doubt, your lawyer should be able to advise you about how long you have to keep trying to meet the "good faith" requirement.
After the joint session, the parties (and their attorneys) will usually be placed in separate rooms. The mediator will spend time with each side to talk about the case ad your settlement expectations, and to get authority to convey offers or demands to the other side.
The private sessions are an opportunity for the parties to discuss the case without the other side hearing. If you tell the neutral that you want something you have said not to be shared with the other side, they will honor that request.
Most often the first private session is with the plaintiff, but the neutral may decide to do it differently depending on what he or she hears in the opening session.
There is no limit to the number of times you will meet in private session. Either party can terminate the session at any time if you believe settlement is not likely. The only exception is if you have a contract that requires a good faith attempt to resolve the dispute. In that case, you should expect to go through at least one or two private sessions before declaring an impasse. If you are in doubt, your lawyer should be able to advise you about how long you have to keep trying to meet the "good faith" requirement.
The Role of the Mediator
The mediator is not a judge. He or she will not be making any decisions about the merits of your case. Instead, he or she assists the parties in assessing the risks and benefits of going forward with the case and in finding a mutually agreeable compromise.
This will include discussion about the factual and legal issues in your case. The mediator may talk about the merits of your case, or the strength of the other side's arguments. This is not because he or she is siding for or against you. This is because it is important for all sides to understand their risks when evaluating a settlement offer. Rest assured he or she is doing the same thing in the private session with the other side.
This will include discussion about the factual and legal issues in your case. The mediator may talk about the merits of your case, or the strength of the other side's arguments. This is not because he or she is siding for or against you. This is because it is important for all sides to understand their risks when evaluating a settlement offer. Rest assured he or she is doing the same thing in the private session with the other side.
Reaching a Settlement
If the parties reach an agreement, you will most likely be asked to sign a mediation agreement before the close of the session. The attorneys for both sides may create a more detailed settlement agreement afterwards, but it is important to document the essential terms of your agreement while the parties and the mediator are all still present.
What Does Mediation Cost?
Unless the court you are in offers free mediation, you will have to hire a mediation service. This involves a fee which is generally somewhere between $500 and $1500 per party. In federal court in Massachusetts, you have the option to use a disinterested judge as a free mediator. Some of the state courts also offer a similar service as part of their case management procedures. The EEOC and MCAD also offer free dispute resolution services.
If you are represented on a contingent fee basis, the fee for the mediator is the only additional out of pocket cost to engage in the process. If you are paying your attorney by the hour, you will have to factor in his or her time preparing for and attending the session. It is important however to compare this cost to the additional legal fees involved in discovery and litigation if you do not reach an agreement.
If you are represented on a contingent fee basis, the fee for the mediator is the only additional out of pocket cost to engage in the process. If you are paying your attorney by the hour, you will have to factor in his or her time preparing for and attending the session. It is important however to compare this cost to the additional legal fees involved in discovery and litigation if you do not reach an agreement.
Should You Engage in the Mediation Process?
Most often, there is little risk to engaging in mediation. Because it is voluntary and confidential, you can be confident that it will not harm your case if you do not reach agreement. The upside is the possibility of reaching a resolution all parties can live with without the continued expense and investment of time involved in litigation.
You should discuss with your attorney the timing of mediation. Sometimes it makes sense to engage in the process at the very beginning of the dispute. Sometimes you re required to do this by contract, as well. The downside to doing it too early is that the parties may not have sufficient information about each other's evidence and arguments to make a good decision about settlement. Generally mediators are very good at teasing this information out, but your lawyer may advise that you need at least some discovery before incurring the time and expense of mediation.
If you are asked to agree to mediation ahead of time as part of a business contract, you should also seek legal advice to understand the pros and cons of that provision.
You should discuss with your attorney the timing of mediation. Sometimes it makes sense to engage in the process at the very beginning of the dispute. Sometimes you re required to do this by contract, as well. The downside to doing it too early is that the parties may not have sufficient information about each other's evidence and arguments to make a good decision about settlement. Generally mediators are very good at teasing this information out, but your lawyer may advise that you need at least some discovery before incurring the time and expense of mediation.
If you are asked to agree to mediation ahead of time as part of a business contract, you should also seek legal advice to understand the pros and cons of that provision.
How We Can Help
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We have worked with all sorts of these provisions, from reviewing and assessing a dispute resolution procedure in contracts to representing individuals and businesses in mediation and arbitration proceedings. We can help you understand what you are agreeing to and how to make the most of the arbitration rules or mediation procedures. Give us a call at (781) 784-2322 or use the button below to schedule a free consultation. We look forward to hearing from you!
