FREQUENTLY ASKED QUESTIONS

What is mediation?

Mediation is a settlement process whereby a trained neutral works with the parties to the dispute to help them reach a voluntary settlement. The confidential process may be voluntary or, where the dispute is in litigation, may be ordered by a court. It is important to understand that any settlement reached through mediation is voluntary and is structured as the parties determine. This gives the parties control over the resolution that they do not have when a dispute is decided by the court.

Why use a mediator?

The confidential nature of the process allows parties to speak more openly with the mediator than they would when trying to resolve the matter through direct negotiation. Mediators are trained in the process of dispute resolution and can provide the parties with an unbiased perspective that parties closely involved in the dispute may not have.

Will the mediator propose solutions?

This will vary depending upon the mediator. The mediator’s role is to help the parties reach a resolution which the parties find acceptable. This can be done a number of ways. Where the subject matter of the dispute and the possible resolutions involve technical or industry specific issues, a mediator with a background in those areas may be better positioned to help the parties reach resolution.

Is the mediator an attorney?

Not necessarily. While there is no requirement that a mediator be an attorney, it is not uncommon to use attorneys as mediators because of the knowledge they bring regarding many of the legal issues likely to be raised and because of their knowledge and familiarity with the litigation process. You should be aware that even though the mediator may be an attorney, he is not acting as your attorney. You should rely on your own attorney for legal advice.

How long does it take to mediate?

This depends on many factors including the parties and the complexity of the issues. Many mediations are scheduled for one day with the parties taking more time if they feel it necessary and if they are satisfied with the progress made. One advantage of mediation is that it can be done at any point in the process of resolving a dispute. Often, early mediation is an effective way to resolve disputes before positions become too entrenched. Most mediators offer flexible approaches to the length and timing of a mediation.

Is the mediation process confidential?

Generally, yes. Where the mediation is done pursuant to a court order, that order will usually set forth confidentiality requirements. Those requirements may vary by jurisdiction. The mediator usually will require all parties attending a mediation sign an agreement setting forth the rules for the mediation, including confidentiality. You should consult your attorney on this and other issues when beginning mediation.

Who attends the mediation?

Generally, the mediation is attended by a representative of each party with full authority to settle the dispute in question and their attorney. The parties may have additional people attend because their expertise is needed to help evaluate and resolve issues in the dispute and/or possible settlement proposals. The mediation is limited to the parties and their representatives unless the parties otherwise agree.

Will the mediator testify or otherwise be involved in a trial if no agreement is reached?

No. The mediator’s role is to facilitate a voluntary agreement by the parties. The mediator remains neutral throughout. At the end of that process the mediator only reports to the court that the mediation occurred and whether the parties reached a settlement.

NOTE; THE INFORMATION PROVIDED IN THIS WEB SITE IS INTENDED FOR INFORMATIONAL PURPOSES ONLY. YOU SHOULD CONSULT YOUR ATTORNEY ON THESE AND ANY OTHER QUESTIONS YOU MAY HAVE RELATING TO MEDIATION.