Alternative Dispute Resolution, A Series: The Nuts and Bolts
The Mediation Process
No one ever plans on getting into a car wreck, and a serious collision can have a negative lasting effect on a person or family. When a Plaintiff is injured, often times the costly and timely process of litigation can be seriously reduced or avoided with the use of Alternative Dispute Resolution (ADR) tactics.
ADR advocates are part of a movement amongst lawyers that attempts to cut down on the cost, time, and stress associated with the litigation process. Often times, litigation can take years and thousands, if not hundreds of thousands, of dollars to complete.
Mediation is a good way to resolve issues quicker and cheaper. This is one form of Alternative Dispute Resolution. Mediation is a process where the parties to a dispute meet with a neutral trained facilitator, called a mediator, to try to resolve a conflict. The parties, their attorneys, and the mediator discuss the goals of each party, the reality of each party’s position and explore possible solutions.
The mediator talks about the settlement alternatives between the parties. Mediation is often thought of as a business-like, supportive climate which sets the stage for positive communication in the future. It is not very adversarial and often times the parties are separated after an opening statement.
The mediator establishes and enforces procedures which are fair and even-handed and which provide all sides a chance to be heard. Mediation also provides an opportunity to express emotions or frustrations which may be blocking negotiations and to address these underlying concerns in a controlled environment.
The length of time needed for a mediation depends on the complexity of the dispute, the commitment and communication skills of the parties and the orientation or limitations of the mediator. Many issues can be resolved in one mediation session of two to four hours; other cases may require multiple mediations.
Mediators provide a safe and cooperative environment which encourages open and honest discussion. The mediator’s role is an impartial one, identifying issues, exploring underlying interests, suggesting options and balancing power. Mediators encourage the parties to put the past behind them and to focus on the present and future.
Mediation is a confidential process. The mediator cannot be called as a witness at trial. The mediator does not have to be an attorney. However, it is usually beneficial to use someone familiar with the laws applicable to the case.
There are some free mediation services available in Texas. However, mediation costs typically range from $500 (half day) to $3,000 (full day). Generally, the parties split the cost of mediation.
If an agreement is reached at mediation, the parties and the attorneys will sign the document prepared by the mediator. Each party and attorney gets a copy of this binding agreement. If no agreement is reached, the case will proceed and the disputed issues will be heard by the judge or a jury, if appropriate.