Mediation, as used in law, is another form of alternative dispute resolution (ADR). It is a way of resolving disputes between two or more parties. Typically, the mediator assists the parties in negotiating a settlement. Mediations can be held for resolution of disputes of all types including commercial, legal, diplomatic, workplace, community and family matters.
According to FindLaw.com, “Mediation refers to any instance in which a third party helps reach an agreement in a dispute. More specifically, mediation has a structure, timetable and dynamics that “ordinary” negotiation lacks. The process is private and can be confidential. Participation is typically voluntary. The mediator acts as a neutral third party and facilitates rather than directs the process.
Mediators use various techniques to open, or improve, dialogue and empathy between disputants, aiming to help the parties reach an agreement. Much depends on the mediator’s skill and training. As the practice gained popularity, training programs, certifications and licensing followed, producing trained, professional mediators committed to the discipline.”
Read more here: http://adr.findlaw.com/arbitration/arbitration-overview.html
Selecting the Best Mediator
Mediators can be professional or volunteer mediators. To find a credible Mediator look to organizations like JAMS and the American Arbitration Association (AAA), web-based rosters, and court programs with lists of local mediators. Most attorneys say that they choose mediators on the basis of the mediator’s reputation. The criteria they seek are those with the most experience and the highest settlement rates.
- Get a list of their references.
- Find out if your prospective mediator believes that the “playing field” should be leveled by sharing information that one party might otherwise prefer be kept confidential, such as alternative case theories or case law that may help one party?
- Does your mediator believe that it is helpful to share his or her opinion?
- Do they understand what happens after that opinion has been shared?
- Has the mediator been trained in “transformative mediation” which is a process that attempts to strengthen parties’ relationships, or in facilitative mediation, where the mediator will serve as a catalyst to a negotiation process?
It is crucial that your mediator has the ability to quickly establish credibility with a wide variety of parties including counsel. Find out if prior counsel say that the mediator was able:
- To establish credibility with the parties early in the process
- Was the mediator able to handle difficult clients?
- Was the mediator able to help repair eroded attorney-client relationships?
Confidentiality – According to Jerry P. Roscoe, Arbitrator and Mediator with JAMS it is wise to ask: “Does your mediator promise that “everything in mediation is confidential”? If so, beware! Generally, only what is created during mediation is protected. Parties may not be quoted as to what they say in mediation and have that quote used in a subsequent legal forum. Notes may be treated the same as quotes. However, mediators cannot protect parties from the use of information learned during the mediation process. Documents do not become confidential simply by virtue of their use in mediation.”
He goes on to say: “What will your mediator do if subpoenaed by your client, your client’s attorney, or the other side? Will the mediator breach confidentiality when he or she feels a moral or ethical obligation to do so? Will he or she reveal to you in advance what those thresholds are? Will the mediator furnish you with all the ethical codes to which he or she subscribes? What will the mediator do when his or her ethical code and ethical obligations as an attorney conflict?”
Parrish Law Firm, PLLC Personal Injury – Tort Law Attorney works with Northern Virginia residents who have been injured because of another party’s negligence and are looking for fair compensation. Contact us today for a free case consultation or call us at 703-906-4229.
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A representative of the Parrish Law Firm, PLLC researched and wrote this article with Mr. Parrish’s consent. If you have any questions regarding the legal implications of what you have just read, please send us your question by clicking here so we can have our attorney review it.