LawyerBrooks.Com

Mediation is a settlement conference. Both sides appear before a mediator, who acts like a settlement referee. Though the rules varies from state to state, the basic rules are usually the following:

• the mediator is to be neutral;
• both sides are to be present either in person or with a representative with full authority to resolve the matter; and
• what happens at the mediation is confidential and not admissible in court.

Most of the time, mediation has been ordered by court. Thus, if the parties fail to participate, then they could be penalized by the Court.

Mediation is not Arbitration: Mediation is sometimes confused with arbitration. Arbitration is more a like a brief trial where parties present some evidence to an arbitrator. Then, the arbitrator makes a decision. Whatever he decides, the parties are bound by it. Mediation is not like that. A Mediator's role is to help the parties settle, not force them to do so. Thus, a mediator may make suggestions to the parties, but he cannot dictate a result. An arbitrator decides the case, but a mediator tries to get the parties to come to an agreement.

How it works: both sides appear before the mediator at the same time. It usually takes place in the mediators office. The mediator will usually meet separately with both sides and briefly introduce himself. Sometimes, but not always, the mediator then meets with all everybody in the same room. After the mediator explains the process in this meeting, each side will gives a brief opening statement setting forth their position. The parties then go to separate rooms.

At this point, the mediator goes back and forth trying to get the two sides to reach an agreement. During this period, the mediator may discuss the issues freely with each side. Mediators are trained not to reveal facts they learn to either side without permission of the side who has revealed those facts to them. Skillful mediators will try to get both sides to assess their own weaknesses to get them to resolve their cases.

If an agreement is reached, many mediators will then draft summary of the agreement and both sides, or their representatives sign it.

Preparation: Most of the time, both sides will do some preparations, but since it is non-binding and somewhat informal, preparations will usually be limited. In minor cases, its not unusual for both sides to show up without any preparation. The clients should defer to their lawyers, and ask if they should bring anything or prepare.