What is Mediation?
Mediation is essentially a negotiation between disputing parties facilitated by a professional. The mediator is a neutral who evaluates the strengths and weaknesses of each party’s case from a legal perspective and then attempts to facilitate a settlement of the dispute in a manner that permits the parties to agree to the terms and conditions of a mediated settlement agreement. This form of alternative dispute resolution provides the parties with much more control of their destiny than they traditionally have in a court of law. A successful mediation often results in substantial litigation savings in terms of both costs and time. Mediated settlement agreements are enforceable.
Can Any Case Be Mediated?
The short answer is yes. Much like arbitration, if the parties agree to mediate their dispute, whatever it may be, the dispute may be mediated. This includes disputes involving employment, construction, real estate, partnership and shareholder disputes, business and contract disputes, insurance claims, personal injury claims, will contests, civil rights claims, environmental claims, custody and property disputes, and the list goes on and on. Virtually all disputes and claims can be mediated.
The average length of time it takes for a case to make it to trial is 2 years. If there is an appeal of the judgment from the trial court to the court of appeals, add, on average, an additional 18 months to that 2 years. During that time, the parties continue to incur legal fees and costs and they continue to invest emotional time in the dispute.
Mediation works. The vast majority of all disputes are settled in a four hour or an eight hour mediation.
As noted above, mediation allows the parties exercise some measure of control over their case. At trial, the judge has control over the courtroom, the attorneys have control over the manner in which they present the case to the jury, and the jury decides what the facts are. In effect, the only thing a party has control over is their own testimony. Mediation tends to eliminate the uncertainty surrounding the process by which a judge or a jury arrives at their verdict.
Finally, mediation is confidential. Information disclosed during mediation may not be used as evidence in any trial or other judicial proceeding. As a result, the parties can be certain that if they are not able to reach an agreement, their positions will not have been compromised by their participation in mediation.
What Factors Should Be Considered in Choosing a Mediator?
Important considerations include whether the selected mediator’s schedule will allow the mediation to be conducted with respect to the parties’ time frame; the number of mediations conducted by the mediator; whether the mediator is trained; whether the mediator has any judicial experience; and, the mediator’s reputation for fairness and integrity in the area and region.
TERMS OF MEDIATION
The parties acknowledge that by Scheduling this mediation, they agree and understand that the following terms shall govern the mediation of their dispute:
1. You have chosen Mr. Chris Antcliff as an independent neutral to aid you in your attempt to settle your dispute. You understand that Mr. Antcliff will not offer legal advice to you during the mediation. Any statements made by Mr. Antcliff during the mediation should not be interpreted as legal advice. In the event that Mr. Antcliff assist you in the preparation of a mediated settlement agreement, you are strongly encouraged to have the agreement reviewed by your independent counsel prior to signing the mediated settlement agreement.
2. You agree to equally share the costs of the mediation unless you have made other arrangements with Mr. Antcliff prior to the mediation.
3. All statements made by any person during the course of the mediation are considered to be settlement discussions and are confidential. All statements made by any person during the course of the mediation are inadmissible in any subsequent litigation, arbitration or other form of alternative dispute resolution.
4. No recording, digital or otherwise will be made of any part of the mediation.
5. You agree that you will not subpoena or otherwise request that Mr. Antcliff testify, produce any documents, records or other work product, in any subsequent litigation, arbitration or other form of alternative dispute resolution proceeding. You agree that should you subpoena Mr. Antcliff notwithstanding your agreement otherwise, you shall pay all legal expenses, attorneys’ fees and costs associated with such testimony or production, including any motion to quash that may be filed.
6. Mr. Antcliff strongly recommends the actual presence at the mediation of those individuals possessing full settlement authority. However, if either party agrees or consents to the appearance of the other party or the other party’s representative by tele-conference or video-conference, Mr. Antcliff will accommodate that agreement. If you are unable to reach an agreement as to the presence of an individual with full settlement authority, you must obtain approval from the Court for that individual to participate in some other manner.