What is Mediation?
Areas of Mediation
Outline of Mediation Process
Contact Person: A. Eric Johnston
What is Mediation?
The cornerstone of the American Judicial System is the jury trial. Also, issues are decided by trials before Judges without juries. In recent years, an alternative to the trial process has developed. It is called Alternative Dispute Resolution (ADR).
The more common term for ADR is "Mediation". Mediation has grown in its acceptability to attorneys and parties over the last several years. Mediation offers a very important step in the dispute resolution process.
While there are variations of the mediation process, it is defined by the Alabama State Bar as follows:
"Mediation is a proceeding in which a neutral third party, the mediator, assists disputing parties in reaching a mutually acceptable agreement regarding their dispute. Mediation sessions are intended to identify pertinent issues, clarify any misunderstandings, and seriously explore the availability of compromise between the parties. The mediator does not render a decision or impose a resolution on any party; rather, the mediator facilitates discussions among the parties to assist them in resolving the dispute themselves."
We include an outline of the mediation process. Please review it to get an idea of the practicality and informal nature of this important process. Not all mediations will be the same, but in most cases, the process will fit the foregoing definition and the outline.
Experience has demonstrated that most mediations take one day. Usually, within that time period, parties will realize whether they are able to resolve their case. Occasionally, a mediation will carry over to another time. Seldom does it last for consecutive days. One of the secrets to success in mediation, is keeping the parties together and working toward a resolution goal. For that reason, the parties do not usually go out to lunch, but lunches are provided at the mediation site. Sometimes, mediations will go into the night. On the other hand, those that may last for more than one day are usually adjourned at some point during the first day and reconvened at some point in the future. It may be the parties need additional time to consider where they are in the process, review additional information, or simply because they have renewed their interest in the mediation process and wish to resume their efforts at an amicable resolution.
We also include the areas in which we provide mediation services. If you have particular needs, please contact us and we can address those.
Additionally, we include our fee schedule. We offer very reasonable rates. Our rates are flexible depending upon unique situations. We are happy to discuss those with you in order to provide you a meaningful service.
Mediation is not meant to replace the traditional legal process. It is a supplement and an alternative to the process. Mediation can be exercised before the filing of a lawsuit. Sometimes, this is important to restoring relations between the parties before the lawsuit aggravates already existing misunderstandings and often times, hostilities. Most mediations are done after the filing of a lawsuit as a step in the legal dispute resolution process. Our experience with mediations has demonstrated that the great majority of good faith mediations result in an amicable settlement of a case. This removes the need to proceed with the case, the trial, and the expenditure of significant funds and resources.
To give you a better understanding, the following is a statement from the Alabama Bar Association which explains the advantages of the mediation process.
ADR AND ITS ADVANTAGES
Legal conflict is inevitable. The traditional litigation process often results in prohibitive costs, time, and hardship to the parties in the resolution of a dispute. Even then, the final resolution is often unsatisfactory. Alternative Dispute Resolution processes, usually involving a neutral third party, are available to provide productive conflict resolution. ADR offers a number of optional procedures which, when properly employed, often result in a faster and more satisfactory resolution. An ADR process may be appropriate at any time during the life of the dispute, even before a lawsuit is filed.
The various ADR methods offer a wide array of advantages, including the following:
Self Determination/Personal Control - Unlike litigation, ADR allows the parties substantial control over all aspects of the resolution of their dispute. The parties identify the issues to be resolved and set the timetable for resolving the dispute. Moreover, rather than having a solution forced upon them by a judge or jury, parties in ADR are free to craft a unique solution that fits their circumstances and satisfies their needs.
Cost Savings - ADR permits disputants to avoid some of the expense of litigation, including attorney fees, expert witness fees, and other costs associated with protracted litigation and appeals.
Expeditious Resolution - Because of the large number of cases filed, court resolution of civil cases often takes years. The likelihood of resolving a conflict expeditiously is far greater with ADR than with traditional judicial resolution. This may be particularly important in time-critical disputes such as one involving an executory commercial contract with issues which cannot await resolution through the judicial system. The time savings afforded by ADR also minimizes the overhead expense incurred by the parties, their staff, and their personnel.
Voluntary and Non-Binding Status - ADR is not intended to replace the judicial system, but instead functions as an aid to the system. All forms of ADR are voluntary and non-binding, unless the parties agree otherwise. Those parties who are dissatisfied with the results retain the right to proceed with traditional trial and appeal procedures.
Qualified Neutrals - ADR participants select the third party neutral. This process helps to ensure that an experienced, qualified neutral can facilitate the resolution of any technical or complex case.
Satisfactory Resolution - The "all or nothing" premise of the common law generally results in at lease one of the parties to a lawsuit walking away dissatisfied. The voluntary nature of ADR advances the prospect that where agreement is reached between the parties, each party is likely to be more content with the result.
Reduced Emotional Trauma - Litigation is, by its nature, adversarial. Often litigants are not prepared to deal with emotional strain and pressure of protracted litigation. ADR affords a means of resolving disputes in an atmosphere which is less hostile or adversarial than a courtroom.
Enhanced Accessibility - The expense of litigation disputes through the courts is frequently so substantial that only those persons or companies with considerable means can pursue resolution of their disputes to completion. ADR will frequently be more accessible to most disputants because the expenses associated with ADR are generally far less.
Preservation of Relationships - ADR techniques allow the parties to a dispute the opportunity to avoid the "blood letting" which accompanies many types of litigation. This may be particularly important where the parties are involved in personal, professional, or commercial relationships which they desire to maintain.
Privacy - Except in unusual circumstances, trials in the judicial system are open to the public, with the testimony and evidence becoming a matter of public record. ADR enables the parties to maintain confidentiality in the proceedings.
Judicial Economy - Utilization of ADR techniques affords the court system more opportunity to concentrate on "high impact" litigation and public policy disputes.
Reality Awareness - The parties to traditional litigation often have unrealistic expectations about their cases. The neutral third person can question and challenge these unrealistic expectations, and hopefully assist the parties in developing more realistic expectations. Disputants with realistic expectations of their cases often are more likely to reach reasonable settlements.
Informal Proceeding - ADR is more informal than traditional litigation. As a result, ADR typically affords the disputants the opportunity to participate personally in the proceedings rather than forcing them to participate only through their attorneys and only in compliance with court rules.
Flexibility - There are several standard ADR procedures, such as mediation and arbitration (binding and non-binding). All ADR procedures can be combined and modified to meet the particular needs of the disputants. Thus, ADR affords a high degree of flexibility, a benefit not available in the traditional judicial system.
· $200.00 per hour Up to four (4) parties as separately identified in a lawsuit or claim; except, husband and wife or parties represented by the same lawyer who have mutual interests.
· $ 25.00 per hour For each additional party not to exceed a maximum of $300.00 per hour total for any mediation.
· Out of Office Mediations Ten percent (10%) additional charge will be added for all out of office mediations.
· Expenses In office mediations: normal expenses, such as meals are included. Extraordinary expenses shall be paid by agreement.
Out of office mediations: travel time, if applicable, shall be at the rate of $100.00 per hour. Extended travel time will be negotiated. Travel expenses shall be at the current I.R.S. mileage rate, actual airfare or other travel charges, plus actual expenses, viz., meals, lodging, etcetera.
· Unless otherwise agreed or ordered by court, mediation fees will be equally paid by each party or interest.
· A deposit of $250.00 per side for mediation fees and expenses is required 24 hours prior to the day of mediation. Refunds may be made at the discretion of the mediating attorney or based on extenuating circumstances.
· We wish to offer as flexible a fee schedule as possible. We are concerned for particular needs and we know there are myriad circumstances which may require different arrangements. Mediation fees are subject to negotiation for unusual, hardship and other appropriate circumstances.
1. Explanation of Mediation and the Role of the Mediator.
2. The Mediator is Neutral in all Aspects.
3. The Benefits of Mediation.
4. Mediation is a Confidential Procedure.
5. The Parties are Encouraged to have Legal Advice, though the Mediator is Not in a Position to Give Legal Advice.
6. Note Taking is Permitted, although the Mediator will Destroy His Notes Following the Mediation.
7. The Mediation may be Terminated at any Time by any Party or the Mediator.
8. Explanation of the Mediation Process
· Defining the Process
· Opening Statements by Parties or Their Attorneys.
· Question and Answer, Discussion, etcetera
9. Any Questions?
10. Is Everyone Committed to the Mediation Process?
11. Review and Sign Mediation Agreement.