Mediation is the facilitated negotiation between parties using a neutral third party to guide the process. The mediator is selected by the parties and has no authority to impose a solution. The process is voluntary and confidential.
- As a voluntary process, the parties may end the mediation at any time. The mediator cannot force the parties to participate or to accept any proposed solution. Even if the mediation is ordered by a court, parties are only required to participate in good faith and are not required to reach settlement. This means that ultimate control of the outcome of mediation is always in the hands of the parties themselves.
- Mediation is also a confidential process. In Illinois confidentiality is covered by the Uniform Mediation Act, and by the terms agreed to by the parties in an agreement to mediate. The written agreement, the Uniform Mediation Act, and other similar court rules insure that statements and writings offered during mediation cannot be used against a party in a later court proceeding. Mediators cannot be compelled to testify about what was said during the mediation. In addition, mediators will keep confidential information heard in a private conference with one side and will not reveal it to the other side without express permission.
Confidentiality is important in mediation to encourage both sides to be candid with the mediator and to give the mediator the opportunity to identify options for settlement. Although settlement is not always possible, learning the confidential information from each side allows the mediator to analyze the dispute and recommend strategies for negotiation or options for agreement.
Mediation maximizes the possibility of finding a solution that is acceptable to both sides. Mediators help parties look at their underlying interests, consider their options if no agreement is reached, and find creative solutions.
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Mediation is forward looking: While the litigation process focuses on past actions and the rights of each side, mediation focuses on the future and how both sides can best meet their needs.
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Mediation is quick and cost effective: Mediation will save parties time and money as compared with litigation. Preparation is still paramount, but can be done more efficiently than in the more formalized procedures of litigation. Parties have full control of selecting the mediator and scheduling the mediation session and can get to the mediation table years before getting to a court room.
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Mediation keeps the parties in control of the outcome: Parties are always in control of the final agreement in mediation. Mediators help the parties understand their alternatives and help develop a variety of options, but the mediator does not have authority to impose a solution. The informal process, confidentiality, and skills of the mediator work together to help the parties find a mutually acceptable agreement.
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Mediation is confidential: Mediation sessions are private and confidential. Parties are not subject to the public exposure that comes with most court proceedings. In addition, parties are free to discuss settlement options during mediation without fear that their statements will be used against them later in court. For example, a party may be willing to offer an apology in mediation. The apology may help reduce tension and anger and allow the parties to find a solution that would otherwise not be considered. If the parties fail to reach agreement in mediation, the party would be protected against use of the apology by the other side in any future litigation.
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Mediation can help retain or repair relationships: Parties to a dispute often have a business or family relationship that could continue after the dispute is resolved. There is a major benefit to settling disputes in a way that minimizes friction and discord in the future.
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Mediators understand that conflict often leads to high emotions: In mediation, parties often have an opportunity to tell their story to the other side and this can result in better communication between the parties. Parties can also vent in separate sessions and, with the mediator’s assistance, may find a way to turn their anger into constructive solutions.
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Mediation gives parties unlimited options for solutions: Unlike the limited options available to a judge or arbitrator, mediators can help parties look for creative solutions. The parties have the knowledge and expertise to devise the best solutions for their problem with the help of the mediator.
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Mediation is an informal and flexible process: Informality can aid communication and make it easier for the parties to understand underlying motivations and the impact of decisions on the other side. This may improve the odds for finding a solution. As a flexible process, mediators can tailor the process to fit the dispute. For example, if emotions are very high and direct communication is difficult, the mediator can arrange to speak individually to each side first and only use a joint session if the parties are prepared and comfortable.
Mediators use different styles of mediation. The most common styles in commercial mediation are facilitative and evaluative.
- Facilitative mediation focuses on understanding the needs and interests of both sides and using that information to help the parties find a mutually satisfactory agreement. For example, the defendant in a commercial dispute may be very concerned about his reputation as well as concerned about the potential cost of settlement. The mediator, in private discussions with the defendant will talk about the relative importance of these two interests and suggest solutions that will address both interests. Facilitative mediators will look for win-win solutions that meet the needs of both sides.
- Evaluative mediation focuses on assessing the strengths and weaknesses of each side of the dispute and using that information to give each side a more realistic view of their options. If the parties are far apart in their demands, the mediator can offer to independently assess the legal positions of each side and give both sides her opinion as to the likely outcome in court. The mediator can also listen to the positions of both sides in confidential meetings and offer an opinion on a financial settlement that both sides might be willing to accept.
Many mediators are experienced in both styles and customize the process to fit the dispute at hand. The mediator may recommend using one style over the other based on the issues involved, or may start off using a facilitative style and switch to evaluative techniques if the parties are not progressing.
Although every mediation is different and every mediator has her own style, most commercial mediations follow similar steps
- Selecting the mediator;
- Pre-mediation conference;
- Mediator’s opening statement;
- Parties’ opening statements;
- Joint sessions;
- Caucus;
- Resolution.
- Selecting the mediator: Once you have made the decision to use mediation, selecting a mediator is the first step. Attorneys usually take responsibility for this and often find mediators through referrals from colleagues. The parties can also make suggestions or check out mediators themselves to keep down legal fees. The International Mediation Institute was established to drive transparency and high competency standards for mediators. The IMI maintains a searchable database of mediators who meet the Institute’s high standards. Several local organizations maintain rosters of mediators including the American Arbitration Association, the Circuit Court of Cook County (Law and Chancery Divisions each have their own roster), and the Association for Conflict Resolution Chicago Chapter. You should look at the experience and training of each mediator, their mediation philosophy, and their fee. Once you have narrowed your search, call each mediator on your list to get a feel for their style and to request a copy of their agreement to mediate. Usually both sides will recommend a short list of mediators and the attorneys will select a mutually acceptable mediator from the lists. Keep in mind that the mediator does not make any final decisions; the parties have sole authority to decide the outcome. This means, for example, that the experience of the mediator as a plaintiff or defense attorney is less important than neutrality, training, and mediation experience.
- Pre-mediation conference: The pre-mediation conference is typically a phone conversation between the mediator and the attorneys for both parties. The purpose of the conference is to confirm logistics including the time and location of the mediation session, the participants in the session, and the submissions that will be shared in advance by each side. It is also an opportunity for the mediator to get a sense of the major issues in dispute. Attorneys should use the conference to explain any special circumstances that will help the mediator be prepared for the main session. Mediation works best when all the decision-makers are present.
- Mediator’s opening statement: The mediation session usually begins with all the participants in one room. The first step after introductions is the mediator’s opening statement. The mediator will take a few minutes to explain the process, talk about confidentiality, and answer questions.
- Parties’ opening statements: Once the mediator has set the tone, each side will have an opportunity to present their case. You should meet with your attorney in advance to prepare an opening statement. The opening is usually presented by the attorney, but often the parties will participate in some way. The opening statements give each side an opportunity to present the strengths of their legal arguments directly to the principals on the other side. It also gives parties the opportunity to speak directly to each other and explain how they have been affected by the dispute. The best opening statements clearly present positions and the strengths of the legal case, but are not confrontational and encourage cooperative discussion.
- Joint session: After the opening statements, mediation styles vary. Sometimes the mediator will keep the parties together in joint session to discuss the issues and explore underlying interests. Other times there will be a brief opportunity to ask questions and then the sides will be separated into different rooms. Longer joint sessions are particularly useful when there is the possibility of a continuing relationship between the parties, as they will have more opportunity to understand each other and work out a settlement that includes future cooperation.
- Caucus: Caucus is the term used for individual conferences including the mediator and one side. Mediators usually spend time meeting separately with each side and will not reveal information they hear from one side unless they are expressly authorized to disclose it to the other side. Mediators will discuss the issues and clarify the underlying interests in caucus. They will also spend time exploring the alternatives to a negotiated settlement to help each party evaluate different options for settlement. Mediators may move back and forth between caucus sessions, or reconvene a joint session to discuss options and facilitate face to face negotiations.
- Resolution: If the parties reach a mutually acceptable solution, the mediator will usually write up a memorandum of understanding or mediation agreement that includes the agreed terms. The agreement may be subject to approval by attorneys if they are not present at the mediation, or it may require a more formal agreement to be drafted by the attorneys. It is very important to put any agreement reached into writing. If no agreement can be reached, the mediator may use a number of different techniques to break the impasse including adjourning the session to allow more fact gathering or offering a mediator’s final proposal that each side can consider. In the case of a mediator’s final proposal, the mediator will only reveal the results if both sides accept the proposal. Another option is to use arbitration to reach a final decision. This can be done in a separate arbitration session, or the parties can agree in advance that the neutral will make an arbitration award if the mediation is unsuccessful.
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