Question 1

How should I select a mediator?

Accepted Answer

Look for someone whose experience and expertise will give you the best chance of resolving your dispute. But, you should also check your potential mediator's references and reputation.

Question 2

How should I prepare my client for a mediation?

Accepted Answer

Make sure your client understands that mediation is a process. Discuss with your client the settlement value of the case. Obviously, the settlement value is different from what you may get at trial. It should be a range, not a hard and fast number. Also, try to determine your client’s goals. They may have nothing to do with the case or its value. Help your client look at the case from the other side’s perspective. Think about their goals and objectives.

Question 3

How should I prepare as an attorney for a mediation?

Accepted Answer

Prepare a position statement that outlines the strengths and weaknesses of the case and gather all pertinent documentation, both good and bad. Also, give your case an honest settlement evaluation. What is your case worth if all goes well? What is it worth if nothing goes right? What are the chances of each?

Question 4

What types of materials and information should I send to the mediator prior to the mediation?

Accepted Answer

Don’t send the mediator everything in your file. Pertinent pleadings, briefs, court rulings, evidence, and summaries that illustrate to the most important points are what the mediator needs.

Question 5

How does mediation work in domestic cases?

Accepted Answer

Mediation can be very effective in domestic cases. Many times, the parties are going to be dealing with each other even after the present dispute is resolved. Having the ability and experience of working through the current dispute can help resolve those future ones even before they happen. Managing client expectations is critical to a successful domestic mediation.

Question 6

How does mediation work in civil cases?

Accepted Answer

Many people assume that civil cases lack the emotion of a domestic case because they are likely only about money, but that is not true. People can be very emotionally invested in their civil case. A good mediator can help manage those emotions, so that the case can be resolved.

Question 7

How does mediation work in appellate cases?

Accepted Answer

Appellate mediation can be particularly challenging in that one party has likely already experienced a victory. However, that victory may be short-lived once appealed. Parties must have a good grasp of what is likely to happen on appeal.

Question 8

Can we continue a mediation to a later date if the case isn’t resolved in the first session?

Accepted Answer

Yes. Often the attorneys will continue to negotiate the case after the initial mediation session. The matters addressed at the mediation give the attorneys a framework and the ability to continue negotiating. The mediator may or may not be involved. Or, it may become apparent in the initial mediation session that something else must occur or be exchanged or discovered or explored before the parties can continue to negotiate. In which case, the mediation can resume once that happens.

Question 9

How much time should I allot for a mediation?

Accepted Answer

The length of a mediation depends on many factors, such as the type and complexity of the case and the parties' experience and honest evaluation of it. But, mediation is a process. The process has to be respected and appreciated. A minimum of a half day should be allotted, but it could take a full day or more. A good mediator will be able to address the mediation as efficiently as possible.

Question 10

Where should a mediation take place?

Accepted Answer

Generally, a mediation session should take place at a neutral venue, so neither side feels the other has some advantage. But, sometimes having the mediation in a location where a party feels secure can actually help the process.

Question 11

Can mediation be forced in a case?

Accepted Answer

Judges can order a case to mediation. But, whether a case settles at the mediation is always up to the parties. While a judge can force you to the mediation, no one should ever force a settlement.

Question 12

Can a mediation agreement be changed?

Accepted Answer

Generally, an agreement reached at mediation can only be changed by agreement of the parties.

Question 13

What types of cases can mediation be successful in?

Accepted Answer

Virtually every civil case (including domestic and family matters) and even some criminal cases can benefit from mediation, which is simply a negotiation assisted by a third-party professional neutral.

Question 14

Why is mediation better than litigation?

Accepted Answer

There are many advantages to mediation over litigation. If a settlement is reached at mediation, then both sides will have a say in the resolution of their dispute rather than putting that decision in the hands of a third party (a judge) or third parties (jurors). Mediation can also be more efficient, quicker, cost less, and offer resolutions that a court cannot.

Question 15

Are mediation proceedings confidential?

Accepted Answer

Mediation should always be confidential. For court cases, it is generally required. And, everyone involved should appreciate and respect the value of the confidentiality.

Question 16

What is the difference in mediation and arbitration?

Accepted Answer

Arbitration involves a decision on the merits of the case by a third-party or panel of third parties outside of a court process. Mediation is simply a negotiation between the parties ,which is assisted by a third-party neutral.

Question 17

How should I prepare my client for arbitration?

Accepted Answer

Preparing a client for an arbitration is virtually the same as preparing them for trial.

Question 18

How should I prepare as an attorney for an arbitration?

Accepted Answer

An attorney should prepare for an arbitration virtually the same as preparing for trial, but should take into account the knowledge and experience of the arbitrators.

Question 19

Can an arbitration award be appealed or challenged?

Accepted Answer

An arbitration ruling can generally only be appealed on very limited grounds.

Question 20

Who attends arbitration?

Accepted Answer

In most cases, those attending an arbitration hearing include the parties, their attorneys and witnesses.

Question 21

Where should an arbitration take place?

Accepted Answer

The location of an arbitration will depend on a number of factors such as the location of the witnesses, the location of the arbitrator(s), whether the arbitrator will need to visit a site, the number of parties and attorneys involved, and the facilities available and necessary for the presentation of the evidence.

Question 22

When can arbitration be invoked?

Accepted Answer

The terms of the arbitration agreement between the parties will generally govern when arbitration should be invoked. There must be an agreement between the parties to arbitrate before arbitration can be invoked.

Question 23

Why is arbitration better than litigation?

Accepted Answer

Arbitration is not necessarily better than litigation. Some advantages to arbitration over litigation can include the knowledge and experience of the arbitrators, the cost, the efficiency, and the speed with which a decision can be made.

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