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Mediation Procedures
Conferences are private. The mediator will meet with both parties, and then sometimes with each privately. Other persons including witnesses, may attend only with the permission of the parties and at the invitation of the mediator.
Counsel Comments: The mediator is hired as a consultant, jointly retained, to help the parties work their way through their problems to resolution. At some point the mediator may make a recommendation or proposal. Both parties can agree or disagree or come to a compromise of their own. The mediator will draft a report confirming the agreement. The report is then submitted to the parties for submission to their attorneys for incorporation into a formal document, such as a settlement agreement.
If the parties fail to agree, or do not agree with the mediator's recommendation, they can break off the mediation, consult another mediator, give up, settle their dispute without a mediator, or go to court. The following is a typical mediation scenario from start to finish:
- The mediator and parties meet at the initial conference. The mediator's role is explained and the responsibilities and rights of the parties are set forth.
- The mediator designs a schedule for the sessions.
- The parties sign a formal retainer agreement with the mediator.
- A method is adopted for obtaining whatever information is required to understand the parties' problems.
- The mediator identifies the various areas of agreement, defines the issues to be resolved, and assists the parties in their negotiations.
- A final settlement may be proposed.
- The mediator arranges for the terms of the settlement to be transmitted to the attorneys of the parties for filing in court, if necessary.
Counsel Comments: Some mediators do not possess sufficient skills or training to be effective. Others have been criticized for not ending the process when the interests of each party are not receiving balanced treatment. If the mediator is a lawyer, he or she often has to make an adjustment in attitude. Unlike the lawyer, who tells the client what to do, a mediator must allow the parties enough freedom to structure their own unique solutions to problems. Mediation by attorneys has raised the concern of whether one lawyer can adequately advise two parties with opposing interests and whether a mediator can invoke the attorney-client privilege in any future litigation. For example, if lawyers are present with the parties at mediation sessions and incriminating or damaging statements are made by a client, a lawyer may seek to prevent a judge or jury from hearing such statements in court when the mediation fails. A judge may not allow such oral testimony to be admitted in court depending on a number of facts, such as whether the parties formally agreed beforehand that such statements were confidential and could not be introduced in subsequent court hearings.
Tip: To avoid problems, interview the mediator carefully; be sure to hire the mediator only on the basis of a written retainer agreement. If you believe the process is not working or do not feel comfortable with the person hired, terminate the relationship immediately and discuss further options with your attorney or other professional advisor. Understand that mediation will not work unless both parties are willing to cooperate and recognize the savings and other benefits to be achieved versus litigation, such as:
- eliminating the anxiety of preparing a case before going to court
- avoiding potential poor publicity
- maintaining privacy
- obtaining a quicker result
- eliminating uncertainty as to outcome when the case is tried in court
- maintaining a desire to maintain good business relationships
If either party has a great need to even the score, mediation will probably fail. Speak to your professional advisor to determine if mediation is a proper means of resolving any employment dispute before resorting to litigation or arbitration. Once involved in mediation with a company representative, inquire if that person has sufficient authority to resolve and settle the matter on the company's behalf once a resolution is imminent. Finally, since your lawyer may be able to meet and question important witnesses, the benefits of learning more about your adversary's case may make the exercise worthwhile even if a settlement is not forthcoming. (Note: In some employment lawsuits, nonbinding court-ordered mediation is required before a trial begins. Speak to your lawyer for more details if applicable.)
Copyright 1998 Steven M. Sack
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