Q. What is mediation?
Mediation is a voluntary process by which parties agree to meet to fry to resolve their disputes with the help of a neutral third party, a mediator. The non -binding nature of mediation means that the parties always have control over the process and no decision is reached for them. Rather, the two sides meet, discuss the dispute, and if possible, come to a settlement which both parties voluntarily agree to accept. The mediators role is not to decide the case but simply to assist the parties in reaching their own decision on settlement.
Q. What is the role of the mediator?
There are many misconceptions out there about how mediation works. The mediator is not like an arbitrator or judge who hands down a decision. Instead, the mediator helps to frame the conversation and ensure that all critical issues are discussed. The mediator’s role is to do everything possible to help the parties communicate to reach an agreement acceptable to both sides. The mediator is neutral, meaning that he does not argue one side or the other. Instead, he makes sure that both sides see both the advantages and disadvantages to their cases, and helps them to realistically evaluate the matter and the benefits of trying to resolve the ease themselves rather than have the case resolved for them.
Q. When can mediation be used?
Mediation can be used at any time during the litigation process. It can be the first step even before a lawsuit is filed, it can take place right after a suit is filed, or it can take place at any time after the case is filed when the parties want to explore settlement.Obviously, the sooner in the process mediation is used, the more benefits can be achieved from mediation, such as the reduction of costs, the maintenance of confidentiality of the facts surrounding the dispute, and reaching a speedy resolution. Additionally, where preservation of a business relationship is desired, an early mediation can be very effective. However, there is no point in the process when resolution by agreement cannot be utilized.
Q. What are the benefits of mediation over litigation?
- Mediation minimizes cost as it takes the place of a lengthy and expensive litigation process.
- The parties maintain control over the outcome of the dispute rather than leaving the decision in the hands of a judge or jury.
- Mediation usually results in a much speedier resolution of the dispute as litigation has become increasingly prolonged and drawn out.
- Mediation maintains the confidentiality of the facts surrounding the dispute. The mediation process is entirely confidential and where the parties do not wish sensitive facts to be disclosed to the public, mediation can maintain this confidentiality much better than a lawsuit in which facts are placed into the public record.
- Mediation can be very effective in preserving an ongoing business relationship where the parties simply wish to resolve a dispute between themselves and not to necessarily lay blame.
- Mediation allows for customized and workable resolutions, sometimes outside the parameters of what is possible in litigation, rather than simply a win/loss outcome.
Q. Is mediation a good option for employment disputes?
There are many different kinds of disputes that can arise between an employer and an employee. The good news is that the majority of them can be mediated. Many employees are hesitant about engaging in litigation as a result of the high cost and scheduling challenges that can make an employment dispute drag on for months. Likewise, employers have concern about time and cost in addition to the public nature of the ongoing litigation. Mediation can be especially attractive when the nature of the dispute calls for particular expertise in a specific area of the law such as employment law or workers’ compensation. In those cases, an individual with a background in employment law and mediation or workers’ compensation, can be very valuable in terms of expertise and time as well as understanding all of the issues involved. Some of the more common employment -related disputes that can be resolved through mediation involve unfair hiring practices, workers’ compensation, employee termination or denied promotions, harassment on the job and discrimination.
Dan HoffmanDaniel Hoffman is a senior partner with the insurance defense firm of Young, Thagard, Hoffman, Smith, Lawrence & Shenton, L.L.P. in Valdosta, Georgia. He received his undergraduate degree from the University of Wisconsin-Eau Claire (1981) and his law degree from the University of Notre Dame School of Law (1984).