Mediation

[msmediate]

If mediation is not successful, Do Defendants ever make another counter offer afterwards? thanx from Fl.

 

[lawrat]

I am a law school graduate. What I offer is mere information, not to be construed as forming an attorney client relationship.

Not sure what you mean, but if you are asking if mediation is binding? I.e if one party makes an offer and it is rejected?

Mediation

Mediation is a process through which the parties to the dispute engage a third party to assist them in coming to a mutual resolution. Mediation improves stalled negotiations because it is assisted and guided by the mediator. The mediator is neutral with respect to outcome; however, he or she does have control over the process and pace of the negotiations. The mediator’s duty and expertise lies in assisting the parties in exploring the range of settlement options and coming to a mutually acceptable outcome. The mediator cannot compel either party to resolve the dispute in any given way, because the parties retain absolute control over the outcome. Mediators meet jointly and privately with all parties in order to gain a thorough understanding of the parties’ needs and interests. Because the process is confidential, parties are able to test their perception of the facts and the law with the assistance of an unbiased third party. Even in those cases where resolution is not achieved, mediation is still beneficial because it serves to streamline the issues in dispute. Ultimately, if a mutually acceptable resolution cannot be achieved, resolution by some other process will be required.

Mediation is most appropriate when an ongoing business or personal relationship is involved. It is in no one’s best interest to subject a business or personal relationship to the adversarial and divisive system of litigation if the parties wish to conduct business together in the future. Mediation enjoys a very high rate of success (approximately 85%) especially when the parties have mutual interests that can be satisfied by a resolution of the dispute. It is best entered into early in the life of a dispute before parties have committed to hard and fast positions, and before anger, hostility and the expenditure of large sums of time and money have poisoned the atmosphere. That is the point in time when a neutral, objective and impartial third party may assist the parties in achieving results which, experience has shown, can be imaginative, inventive, and not necessarily based on a monetary settlement. It is this ability to craft results which meet the parties’ underlying interests and overall objectives that is unique to mediation and one of its many significant benefits.

Mediation can be done quickly and in a cost-effective manner. The process can be started within days or weeks and, because it is a somewhat informal process, preparation time can be kept to a minimum. The fees for mediation generally run between $150 and $250 per hour and the parties split the costs equally (although low cost alternatives are available in the community). Unlike litigation, the process of mediation is one that allows the direct participation of those actually involved in the dispute (as well as their lawyers) thus creating the likelihood of more satisfactory and durable settlements.



Arbitration

If the dispute is not amenable to mediation, the other alternative, short of litigation, is arbitration. In arbitration parties submit their evidence to an impartial, neutral arbitrator (or panel of three arbitrators) whose decision is final and enforceable in court. Arbitration is swift (generally concludes on 3-4 months from inception), private, and informal with relaxed rules of evidence. The process is chaired by a party-selected neutral person, assuring that the decision-maker has experience, knowledge and understanding of the issues. Like mediators, arbitrators are well trained, highly skilled neutrals who bring their own experience and expertise to the service of the parties.

A common benefit to both mediation and arbitration is that each is a private process. If the dispute involves competitive bidding practices, trade secrets, critical employment information, long-term corporate strategies or other sensitive information, that information can be kept in strict confidence and free from public scrutiny.

In summary, the benefits achieved through ADR are:

1. reduced costs,

2. reduced time,

3. preservation of relationships,

4. greater control over the process,

5. flexibility,

6. enhanced ability to manage resources,

7. confidentiality,

8. experts serving as neutrals.