"A judicial contest, a judicial controversy, a suit at law."
"...the act of a third person in intermediating between two (or more)contending parties with a view to persuading them to adjust or settle their dispute."
"An arrangement for taking and abiding by the judgement of selected persons in some disputed matter, instead of carrying it to established tribunals of justice, and is intended to avoid the formalities, the delay, the expense and vexation of ordinary litigation."
(Black's Law Dictionary- 5th Edition)
At VERITAS CONFLICT RESOLUTIONS we use an interest-based rather than positional approach to mediation of conflict. That means that we identify and probe the real needs and interests of the individual parties that ought to be served or satisfied, rather than the parties' stated positions at the outset, which may or may not adequately serve or even address their real interests. This approach leads to more meaningful, substantial and durable settlements.
To this end it is wise to keep in mind Lord Palmerston's words to the British House of Commons in 1848, and which are as pertinent today:
"We have no eternal allies and we have no perpetual enemies. Our interests are eternal and perpetual, and these interests it is our duty to follow."
Mediation is a confidential, party-driven and mediator-guided alternative dispute resolution process whereby the parties (sometimes accompanied by their legal or other professional representatives) cooperate with each other and are guided by the mediator in attempting to settle their dispute or conflict in a mutually satisfying way, and in a safe environment. It is the alternative dispute resolution process that gives the parties the most control in resolving their dispute and because of this is less risky than other forms of dispute resolution including arbitration and judicial trial. The parties determine the issues raised, negotiations undertaken, decisions made or agreements derived. Mediation is not litigation and it is not therapy. It is quicker, less risky, less formal and definitely less expensive than courtroom litigation for most types of cases. Moreover, the mediation process can provide for better overall settlements and resolutions of disputes because the parties are not limited to only the relief that a trial or arbitration proceeding can give.
The mediator first and foremost is a neutral, impartial party who provides and maintains a safe environment for the process to unfold. The mediator uses active listening skills and helps the parties to do so also, in eliciting each party's individual interests and needs as differentiated from often stridently declared positions.
A mediator will also clarify the differences between the parties and identify areas of common ground. A mediator may also utilize the process of separate caucuses (private meetings with each party) to further the process along. A mediator may also (along with the parties' representatives) generate options for consideration. However, the mediator (unlike an arbitrator or judge) never makes a decision and does not "judge" the parties. In a successful mediation, a mediator may also draft a document called a Memorandum of Understanding (MOU) setting forth the parties' agreed upon future actions. The mediator (even if an attorney or former judicial officer), does not give legal or other professional advice.
No. However, many types of complex disputes (e.g. business contractual disputes, partnership dissolutions, personal injury matters, estate planning disputes) are most efficiently dealt with by inclusion of related professionals. Other types of disputes (e.g. family relationship challenges resulting from personal life events such as elder incapacity, divorce, second marriages, deaths) often proceed swimmingly,without the necessity for outside professionals. What is paramount to a successful mediation, is that all persons with the appropriate and necessary authority to settle the dispute be present at the mediation.
Any substantive type of dispute is resolvable through mediation. However in those situations in which one of the parties feels restrained from speaking freely, through physical, or sometimes extreme emotional intimidation by the other party or someone closely associated with the other party. mediation is not appropriate. Statistically those types of cases are very rare. Mediation to be successful, requires the open and voluntary consideration and expression of all of the parties' needs and interests.
No. In fact many mediations are undertaken after filing of a lawsuit, while litigation is ongoing. Timing of mediations can be a very important consideration. In some cases, it is appropriate (and less costly) to mediate prior to filing of a lawsuit, while in other cases mediation is most appropriate and effective just prior to trial when the parties have completed the (factual) discovery process and ostensibly know the most about the facts, advantages and disadvantages of their case. Each case is different and an ethical mediator will discuss the status of the case prior to any proposed mediation, in order to evaluate whether the case is yet ripe for mediation. Also important to note, is that anything said by any party in a mediation is confidential and by law cannot be revealed in later litigation or used against an adverse party (except in those cases where a party seeks to enforce a term of an MOU that was created during mediation). See Forms menu for further information on that limited exception.
No simple answer here, and the short answer is that it varies, depending on many factors including the number of parties, complexity of the facts, number of issues to be resolved, the parties' temperaments and capacities to advocate and express their interests, and sometimes even external factors e.g. needing information not then available to the parties at the mediation. It is safe to say that at least a half-day minimum is usually required often extending over several, not necessarily consecutive days.
Again it varies. However here at Veritas, we generally require a half-day (i.e. four hours times the agreed upon hourly fee) non-reimbursable minimum fee in advance, in those cases where no legal or supporting briefs have been filed. In those more complex cases where briefs have been filed, a one-day non-reimbursable minimum fee (i.e. 8 hours times the agreed upon hourly fee) in advance, is required. The fee is split between, or among the parties as necessary and agreed upon. (See Forms page for further information).
Although mediation is remarkably successful in most cases where the parties come to the table in open, honest communication and willingness to cooperate, no mediation process can guarantee a successful resolution or that the parties will leave the table with a written MOU setting forth the terms of their agreement. However, even in those cases where the parties are unable to settle their dispute, mediation still provides a very valuable service. First, the parties generally often obtain new and useful factual information. Also, a party very often for the first time at the mediation, confronts the other party and has the opportunity to not only perceive the situation from his/her perspective and to hear how the dispute has affected him/her personally, but also to evaluate how the adverse party would present on the witness stand. Sometimes that ability allows the parties to achieve a later breakthrough. Additionally, the mediation process can provide parties with the first realistic assessment of their case in the glare of daylight, and not from a one-sided, usually rose-tinted glass perspective with which many parties perceive their own exalted position in any given dispute. This can be a valuable persuasive adjunct to the attorney with client control issues.
Yes. The agreement is legally binding on the parties to the same extent as any other consensual contract between or among parties and the courts will enforce them as such. Rarely do the parties not comply with the hard-negotiated commitments reduced to writing in a Memorandum of Understanding (MOU).
Like mediation arbitration is less formal, quicker, less expensive and less emotionally burdensome on the parties than extended litigation and a trial. Arbitration is a type of alternative dispute resolution process through which parties attempt to resolve their disputes outside of the courtroom with the use of a third party neutral. That is where the similarity with mediation begins and ends. Arbitration is a more adversarial process whereby the parties (usually) agree to be bound by the decision of a neutral third party to whom the case is presented. In other words, the arbitrator unlike a mediator, does make a decision in favour of one party or another. Consequently, the parties themselves do not have as much control of their destiny as with mediation, the process is much riskier than mediation in terms of outcome and there is less openness and fact sharing, sometimes resulting in a less than satisfactory address of the parties' real interests rather than their espoused positions.
While arbitration is less formal than a court of law in terms of the rules for admissibility of evidence, the decision is usually binding on the parties and sometimes can be entered as a judgment in pending litigation. More specifically, parties sometimes contract between or among themselves for an arbitration decision to be binding and final (i.e. unappealable), but in other cases, the parties are compelled by a court to arbitrate, in certain procedural settings. In such cases there is usually some limited right to appeal the arbitrator's determination.
What does the arbitrator do?
The arbitrator acts somewhat like a judge in a courtroom setting in that he/she hears testimony, makes findings of fact based on the evidence (testimony, documentary or other physical evidence) and makes a determination or decision on the merits of the case based on the applicable law. The arbitrator does not give legal advice or counsel to the parties, nor does the arbitrator meet separately in private caucuses with the parties. The arbitrator's determination is generally in writing and is transmitted to the parties and the court (if applicable) at a later date.
Costs and duration of arbitrations is similar to that of mediation costs and duration as discussed above.