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What is Mediation?
Mediation. Mediation is a process in which parties to a dispute meet with the mediator to negotiate a mutually acceptable solution. Unlike litigation where a judge makes a decision, mediation is a process that empowers parties with information and allows them to make decisions based on their interests, needs and objectives.
Role of the Mediator. The mediator’s role is to assist the parties in attempting to resolve their issues. The mediator will provide a neutral environment, a process to use to keep the parties focused and will help the parties understand their interests, needs, risks and options. The mediator is not a judge and will not render a decision. Instead, the mediator is a neutral third party who assists the parties in understanding the issues, risks and options. The mediator is not acting as an attorney for either or both of the parties. Parties are encouraged to consult their own attorneys for legal advice.
Role of the parties. The parties are the decision makers in mediation and must be prepared to discuss their interests, objectives and concerns. In addition, the parties should understand their options in the event they are unable to reach an agreement. The parties will receive information regarding their interests and concerns, the other parties’ interests and concerns, and the risks and the options available. Empowered with this information, the parties make decisions regarding the case.
Role of Attorneys. Attorneys participate in mediation to assist their clients in understanding the legal aspects of the case, the risks of litigation, and the options for settling the issues. Attorneys should discuss the mediation with their client in advance, if possible. Attorneys and clients should identify the clients’ interests and needs, assess key evidence, evaluate strengths and weaknesses, discuss the costs of litigation and understand the best alternatives if the parties are unable to reach an agreement.
Confidentiality. Mediation sessions are privileged and confidential discussions that are inadmissible to the extent allowed by law in future proceedings involving a dispute. Confidentiality is important because it allows the parties to be candid and open regarding their interests and needs. This open discussion assists the parties in reaching acceptable resolutions. The parties agree that in the event the mediator is called to testify at any court proceeding or is requested to provide documents related in any way to the mediation, the party or parties requiring the information from the mediator will pay for the mediator’s time at her current hourly rate, all attorney fees, costs and any other related expenses incurred by the mediator in opposing any subpoena or other court order for the production of documents or the mediator’s testimony. Abuse of an elderly indidual, incapacitated individual, or abuse of a child presently under the age of 18 years of age, and threats of harm to the mediator, either party or a third person are excepted from this confidentiality requirement.
Private Caucuses. The mediator may hold private caucuses with one party at a time in order to improve the mediator’s understanding of that parties’ position. The parties may share confidential information with the mediator during these caucuses. The parties are encouraged to be candid in discussing their dispute with the mediator to maximize the potential for settlement. The mediator is authorized to disclose any information disclosed that the sharing party does not expressly identify as confidential.
Good Faith. The parties are expected to act in good faith during the mediation session and to fully disclose all information that would necessarily be disclosed during litigation proceedings.
Legal Advice. The parties are strongly encouraged to obtain legal advice throughout the mediation process.
Withdrawal. Either party or the mediator may withdraw from mediation at any time.
Fees. Parties to mediations are billed on an hourly basis, at the mediator’s customary hourly rate, which may vary depending upon the nature and complexity of the matter being litigated. Specific information regarding the rate applicable to a particular dispute may be obtained by calling, emailing or writing to the mediator.
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