Bernstein-Burkley, P.C. Managing Partner, Robert S. Bernstein, discusses mediation, a popular alternative dispute resolution tactic, in his ebook: 5 Ways that Mediation Can Save You Time and Money.
Learn more about mediation in this 5 Minute Legal Master Series episode:
Welcome to the 5 Minute Legal Master series where expert attorneys help you master important legal topics. Today, board certified creditors’ rights and business bankruptcy attorney, Robert S. Bernstein discusses mediation.
Mediation comes under the heading of alternative dispute resolution which is a broad category that includes mediation, arbitration, early neutral evaluation and maybe some other things but those are the 3 main things people talk about. Those are ways to resolves disputes outside court or in conjunction with a court proceeding. Mediation, which to me is the most important of those things is a facilitated settlement discussion, it is entirely voluntary among the parties, although a court may order the parties to go to mediation, the result is voluntary. There is a mediator who is a neutral party either hired by the parties or directed by the court to be the mediator who helps the parties come to an agreement if possible. That mediator has gone through special training and presumable has had previous experience mediating cases so that he/she can help you, the parties to have a meaningful discussion.
Sometimes the discussion is facilitated best by the parties’ not being in the same room, sometimes the parties should be in the same room. typically when I mediate a dispute, I have the parties together all in one room at the start, I make some introductory comments about the mediation process, including the fact that everything said there is confidential and cannot be disclosed to the court or anywhere so that the parties can be free to have an open discussion. I make these initial comments, I often ask each side whether by their attorney or by one of the parties to make an opening statement to say whatever they want to say about the dispute, possible resolution, their feelings about the dispute so that they can, in some sense get it off the their chest.
It may be hard for the other party to hear because there maybe things said which may be hurtful, hopefully they are not, but they might be, but it is important for the resolution process for people to be able to say what they need to say ad get their feeling heard. Often times in court proceedings, parties do not feel that they have had an opportunity to be heard, mediation allows that.
After the parties have given their opening statements, depending upon the field, I might ask for discussion to happen right then and there. I would have consulted with counsel on both sides, or the parties to get some idea of the settlement position that is confidentially provided to me before the mediation. I may feel that things are close enough or maybe far enough apart that there ought to be some discussion right then. Either after that or instead of that, I will separate the parties in separate rooms and we will then shuttle back and forth talking to the parties privately and confidentially about their positions, how the case may be settled and this allows me to perhaps fashion a settlement that I can suggest to each side based on what each side has said in order to help them come to an agreement.
At the end of the session if there is an agreement the parties will help me write it down so that there is an agreement that can be signed so that the case can be resolved, either back to the court for a final order or judgment or if there is no court involved for a final agreement. But at least at the end of that day we will know that the mediation accomplished a settlement.
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