Over the last few decades our legal system has made a push to implement alternative dispute resolutions (“ADR”). ADR is exactly what it sounds like, an alternative to going through the formal court room process. Samples of ADR are negotiation, arbitration, and mediation. In this series of blog posts I will describe each one of these ADR forms so that you can understand ARD and not be scared of the process. In this week, I will discuss the process of mediation.
Usually court room trials are long, drawn out, expensive, time consuming, and stressful whereas mediations are almost always quicker, less expensive, and less formal. Mediation also gives you the power to choose the settlement you want. Mediation is a voluntary or court ordered event used to settle a case and avoid trial. Best of all, there is no requirement to reach an agreement during a mediation. Mediation usually takes place in a location that you or an opposing party agree upon. The people present at a mediation will be the opposing parties, their representation (if there is any), and the mediator. A mediator is a neutral third party that is hired to help both sides in a dispute reach an agreement, thus effectively settling it. The mediator is there to serve you. He/she is not a judge or arbitrator, he/she is paid by the parties and is present only to help the parties reach a successful settlement. About 90%-95% of cases end in settlements. This is why so many judges and parties choose to attend mediation, because it works. Don’t get it wrong, mediation should be taken seriously but hopefully you will feel at ease after reading this this information about the mediation process.
First, you should be prepared for mediation. Make sure you bring all important documents, evidence, statements, or items you think will be used in the mediation. Second, Set aside the appropriate time needed for a mediation. Mediation may take 10 minutes or 10 hours, it all depends on the issue and if the sides are willing to participate. Third, make sure you arrive on time – you are paying for this mediation, you might as well get your money’s worth.
Once both parties arrive at the mediation, or are present on the phone, the mediation will begin. It usually starts with the mediator giving an opening statement describing how his/her mediation process will go. A good mediator will start by describing his/her roll, each step of the process, who speaks first, and what he/she expects of the parties. After the mediator’s opening statement, he/she will usually ask the parties if they have an opening statement. Party opening statements can vary but usually take the form of you telling your side of the story and what you are looking to gain in the mediation or an acceptable settlement. After opening statements, the mediator will usually allow each party to speak in turn.
During the mediation the mediator might do what is call a “caucus”. A caucus is a fancy word for the mediator asking one party to step out of the room while he/she speaks to the other party. Remember, a mediator is a neutral third party, he/she is not speaking behind your back and is not “pulling a fast one” on you. Usually a caucus is used for the mediator to gain more information in confidentiality so that he/she can better mediate. NOTE: Some mediators choose to keep all information gained during a caucus confidential and some will tell you that none of it is unless you request it. Make sure that you know which standpoint your mediator takes and inform him/her of information that is sensitive.
An Unsuccessful Mediation
Mediation may end or be canceled at any time during the process. A party may end a mediation by refusing to participate and a mediator may choose to end it if he believes there is no possible agreement. If you feel that mediation is not working, that a settlement will be reached, or you would like to continue on a later date, simply tell the mediator. Remember, there is no requirement to reach an agreement during a mediation. You can walk away at any time and choose to go to trial.
A Successful Mediation
Alternatively, if both parties may agree to a full settlement or partial settlement. A full settlement means both parties agree to settlement terms and sign a contract stating the terms. Usually the contract is drawn up later but it may be done at the mediation. A partial settlement is when the parties agree to settle on some issues but not all, leaving the unsettled issues to be further mediated or litigated. Remember, mediation is non-binding, you may not come to full agreement, partial agreement, or no agreement at all – it’s up to you and the other party. NOTE: Almost every settlement requires you to give up your right to litigate the settled issue. Be cautious and read the settlement thoroughly because you will most likely not be able to take a settled issue to court ever again after signing.
Hopefully this information was helpful enough to prepare you for your future mediation. However, if you feel at any time you need to speak to a lawyer, call the Difato Law Office at any time. All consultations are free of charge regardless of if you retain us.
If You Think You Need a Lawyer
If you believe that you or someone you know is being mistreated by an insurance company and need help during the claim process, or to rebut a denial, do not hesitate to contact to contact a lawyer or make a claim. The more signs of roof damage, the more important it is to have your home checked out to prevent further damage and possibly deadly mold. If you do not see visible roof defects but believe your roof is in fact defective, a lawyercan hire an engineer to test your roof.
If you liked this information go to www.DifatoLaw.com to read more. If you need to speak to a lawyer call the Difato Law Office at 813-616-1110 for a free consultation and evaluation of your home or simply fill out a free case evaluation form.
– Stephen Difato
Attorney at Law
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