1. What kinds of cases can be handled by a mediator?
Mediation is ideally suited for civil disputes, especially those involving personal injury, contracts, leases, business disputes, estranged business partners, or a divorcing couple who might mediate to work out a mutually agreeable child custody and division of property agreement.
2. How long does mediation take?
The time taken for mediation varies according to the type and complexity of the case. Simple cases, such as small business disputes, consumer claims, or auto accident claims, can normally be resolved after a half day or, at most, a full day of mediation. Cases involving multiple parties can last longer. As an estimate, one hour of mediation time is normally required for each additional party. Major business disputes, involving complex contractual issues, large amounts of money or terminating a partnership could last several days or more.
3. How does mediation work?
Although mediation is not held in a courtroom setting, the procedure is structured, and typically involves six distinct stages:
- Opening Statement by the Mediator: The mediator opens the mediation by welcoming the disputants, and after introducing everyone, explains the goals and rules of the mediation, and encourages each side to work cooperatively and constructively toward a settlement.
- Opening Statements by the Disputants: Each party is invited to describe their version of the dispute and how he or she has been affected by it. In their opening statements, each party is expected to give their ideas about how the dispute can be resolved. The mediator keeps strict control of the meeting, allowing only one party to speak at any one time, and without interruption.
- Joint Discussion: Once the parties have had the opportunity to explain their version of the dispute and give suggestions on how it may be resolved, the mediator may try to get the parties to discuss the problem together. During the opening statements and joint discussion, the mediator is able to determine what issues need to be addressed.
- Private Caucuses: The private caucus, normally held in separate conference rooms, is a chance for each party to meet privately with the mediator to discuss their case, including any strengths and weaknesses of his or her position, and suggesting new ideas for settlement. The mediator may meet with each party as many times as needed, going between parties to discuss issues and possible resolutions. These caucuses are considered the most important period of mediation.
- Joint Negotiation: After caucuses, if everything went well, the mediator may bring the parties back together to negotiate directly.
- Closing: This is the end of the mediation period. Both parties are invited back into the mediation room and the mediator reviews the progress with them. If an agreement was reached, its main provisions can be put in writing, and the mediator may ask each side to sign a copy; the parties can sign a legally binding contract at this time. However, if no agreement was reached, the mediator will advise the parties of their options, for example, to arrange another mediation meeting, going to arbitration, or going to court.
4. What is the difference between mediation and arbitration?
Basically, arbitration is legally binding and mediation is not unless there is an agreed settlement.In mediation, the parties meet, discuss and negotiate in a formal setting, using the mediator as a facilitator to find a resolution. Normally, the mediator has no power to dictate any decision and a resolution is only binding if the parties agree to sign a legally binding document.
In arbitration, the setting is far more formal and resembles a court atmosphere where each party may interrogate witnesses, present evidence, and make arguments. At the end of the arbitration, the arbitrator renders a legally binding decision.