If you have ever been part of a lawsuit, you are probably aware that somewhere in the range of 95% of employment-related lawsuits are settled, dismissed, or otherwise resolved before trial. While some cases are resolved through direct negotiation between the lawyers, or through motions filed with the court, a significant number continue resolved through mediation.
Mediation is an informal process in which a neutral third party assists the opposing parties to reach a voluntary, negotiated resolution of a charge of discrimination. Mediation gives the parties the opportunity to discuss the issues raised in the command, clear up misunderstandings, determine the underlying interests or concerns, find areas of agreement and, ultimately, to incorporate those areas of agreements into solutions.
Mediation is, necessarily, a formalized negotiation process with the assistance of an experienced lawyer, retired judge, or (in court-ordered mediations) a magistrate judge. The parties to a dispute hire the mediator (or, sometimes, are provided with a mediator by the court), and then the attorneys and one or more client representatives from each side meet with the mediator to try to work toward a resolution of the dispute. Many courts require parties to attempt to resolve their differences through mediation before proceeding to trial.
Mediation can help to reduce tension, anger, and misunderstanding, and improve communication between you and your partner. This is especially important when you have children because you will probably be co-parenting over their care and upbringing. Divorce ends your marriage, not your role as a parent.
Clients who have never participated in mediation are sometimes surprised by the process – and occasionally worried about conciliation before they understand what it will involve. Here are SEVEN interesting facts that are most frequently surprising to people when they start preparing for mediation:
1. Mediation is not only for court cases. Although many courts refer parties in a situation to arbitration, you may also use a mediator as an alternative to going to court.
Mediation benefits apply to businesses, community, consumer, contracts, human resources, family, personal injuries, public policies, real estate.
2. The mediator can’t force you (or the other side) to do anything. A mediator’s job is to help the parties resolve their dispute. Most mediators will point out the weaknesses in each side’s case, and try to get each side to move toward the other side’s position.
Some mediators will give an opinion of what the case is “worth,” but that evaluation is not binding or enforceable in any way – although it can be useful to get a neutral third party’s view of the case.
3. It is confidential. One of the hallmarks of mediation is that the process is secret. The parties can determine the level of confidentiality required for their resolution. Steps put in place during negotiation to help ensure this privacy include:
• All sessions take place behind closed doors.
• The meeting is not recorded.
This is different than the courtroom, where the dispute is recorded and resolved in the public domain.
4. Even if mediation is unsuccessful, there may be further negotiations. Most mediators will follow up at some point – some sooner than others, some more diligently than others – on cases that do not settle.
And your attorney may contact the other side or the mediator to try to continue discussions or to find out what made negotiations break down (if it wasn’t obvious). Even if the parties leave a mediation without any plan for further discussions, that doesn’t mean that negotiations are over forever.
5. Sometimes a settlement isn’t the only purpose. While parties almost always go into mediation with the goal of resolving the dispute, that is not still the only goal, and an intervention that does not solve the case is not necessarily unsuccessful.
Sometimes mediation serves other purposes: it might allow the parties to agree on steps to be taken before further discussions will be productive; it might give the parties more information about their opponent’s position; it might allow the parties to narrow the dispute, by eliminating some claims or some parties; or it might – although less often – confirm that the parties’ positions are too far apart and too hardened to make further discussions useful.
6. Mediation is informal. The mediation needs to reflect responsiveness; this means, the intent to allow the parties to craft a resolution outside of the strict rules of the legal system. A responsive mediation process is informal, flexible and collaborative.
7. Mediation is efficient and cost-effective. Most mediations usually conclude within a half to a full day, where the costs are controlled. A trial of a dispute can last for multiple days or weeks resulting in large amounts of attorneys’ fees and expenses.