1. What is Mediation?
In mediation, the parties engage in a process that allows them and their attorneys to make a final decision that they both find acceptable and can agree to. The mediators manage the process, including communications, discussions and negotiations, in such a way that the parties have a full opportunity to give thorough consideration to all of the issues, personal and legal ramifications, and possible settlements and alternative outcomes. The parties will be encouraged to discuss the important needs, interests, values and goals that are motivating them to pursue the matter, and to rely on their attorneys to advise them of the legal implications of the issues and any decision they may make. The mediator will not impose a settlement or recommended a particular outcome. Instead, he or she will assist the parties and their attorneys to identify the range of possible solutions and select one that will result in a final resolution of the matter.
2. How Mediation works in Civil Litigation
What exactly happens in mediation? Mediation generally moves through six successive steps: First , the mediators will meet with both parties and their attorneys together to go over the principles of mediation, stress their roles as impartial facilitators, discuss any ground rules for the mediation, answer any questions and go over the agreement to mediate form. During the course of mediation, the mediators will probably meet separately with each party and his or her attorney. Second , the mediators will want each of you to tell briefly, but fully, exactly what brings you to mediation - some of the history, some of what you are looking to achieve and some about your current situation. Before moving on to the next step, the mediators will want to make sure they have correctly heard all that you have said, so they may ask you some questions, repeat what they believe you have said and ask you to confirm or correct their understanding. The mediators are looking for the “non-legal” version from the principle parties themselves. While many employment issues have legal ramifications and attorneys may be involved or litigation contemplated or already started, the core issues almost always began with particular workplace conflicts over the conditions of employment, the work environment, co-worker relations, hiring, firing and promotion issues, supervisor/subordinate relations, etc. Third, the mediators will use the information you and your attorneys have given them to identify the issues that need to be decided, what are some of the very important considerations you have in making those decisions and some of the areas of agreement they have picked identified in listening to each of you as carefully as they can. Often issues are presented by the parties and their attorneys as a dispute over a particular settlement amount or the issue of legal liability itself, but this can be deceiving. Frequently, the reason no settlement has been reached is that one or both parties has an issue or principle that has not been addressed. Once that issue is on the table and addressed, the parties are often able to reach an immediate agreement on the terms of settlement. Fourth , the mediators will ask you to discuss some of the options you feel will resolve each issue. This is a brainstorming session - so feel free to propose ideas and solutions that you might not even agree to - just to get the ball rolling. Fifth , the mediators will facilitate your efforts to put these ideas and possible solutions into proposals, working through the problems and objections as you go. Sixth , the mediators will work with you and your attorneys on two additional tasks essential to agreement: 1) identifying appropriate, agreeable language to reflect the agreed upon terms and 2) trouble-shooting the agreement to make sure it is workable, sustainable, realistic and will actually resolve all of the issues between you. 3. Working with Difficult Parties in Mediation What if the other party lies about everything in mediation - won't the mediation outcome be slanted in his or her favor ? No! Probably the worst that will happen is that the other party will derail the process and there will be no agreement. Usually people realize rather quickly that 1) lying just antagonizes the other party and the other party is needed if there is to be an agreement; 2) The mediators are really interested in drawing out your concerns about meeting your needs, interests, values and goals - things it’s not very productive to lie about! and 3) the mediators don't make any decisions about the outcome, so they can't make a lopsided agreement that favors one side or the other because of an incorrect understanding of the facts. Can mediation work if the other party is locked into a particular position and won't be reasonable ?
Yes. Mediation can still work, even when one of the parties begins the process locked into a particular position. That's because, in mediation, we ask you to look closely at your needs, interests, values and goals, rather than your positions. We assist you to look behind your positions to find these needs and interests and to discuss options for meeting them that you might both be able to agree to.
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