By HAWLEY HOLMAN
I am a Texas Certified Mediator although I am able to mediate cases by agreement of the parties in both Arkansas and Texas
where I am licensed.
Mediation is a procedure in which the parties discuss their disputes with the assistance of a trained impartial third person( mediator) who assists them in reaching a settlement. It may be an
informal meeting among the parties or a scheduled settlement conference. The dispute may either be pending in a court or potentially a dispute which may later be filed in court. Cases suitable for
mediation are disputes in commercial transactions, personal injury, construction, estate disputes, divorce, domestic relations or any other matters which could end up in Court.
A good mediator is a person with real, practical experience in the area of dispute being mediated. The mediator is a facilitator who has no power to render a resolution to the conflict although
the parties can ask the mediator to submit a Mediator’s Proposal which the parties have the option of accepting or rejecting. Even though the mediator is an attorney he cannot give legal advice while
in the role of a mediator. However, the mediator's subject area expertise may be beneficial to the parties in wording and framing the discussion during mediation or in drafting a mediated agreement or
in circumstances where the parties are open to neutral case evaluation by the mediator.
BENEFITS OF THE MEDIATION PROCESS
There are numerous reasons why a party to a dispute might choose mediation over traditional litigation or other forms of
alternative dispute resolution. Some of them are affordability, timely resolution, private sessions, confidentiality, participation in the resolution of the dispute, and in many cases, preservation of
the interrelationship between the parties.
The cost of mediation is less than the average cost in time and money for the litigation of a dispute. The mediator's hourly rate is generally lower than the hourly rate for a lawyer in litigation.
Parties can often schedule mediation within weeks of a decision to mediate or a court order to mediate.
Mediators usually offer their services at a time convenient to the parties. There are no spectators to the mediation and whatever is said in the mediation cannot be repeated or reported by the
mediator to another party without permission of the other party. The Mediated Settlement Agreement is the only record of the proceedings. The Agreement to Mediate which is signed by the parties prior to
the conference will often remind the parties of the confidentiality of the session and that the mediator is not available as a voluntary witness in a trial of the matter.
HOW DOES IT WORK?
The conference is held at a mutually agreeable place. The initial mediation may continue with subsequent telephone negotiations
between the mediator and the parties where appropriate.
Present at the session are the parties and their attorneys, if represented, the mediator and others as agreed to in advance.
Attendance at the mediation by the party with the authority to settle is essential. In personal injury mediations, the insurance adjuster should advise the mediator that their supervisor or another
person with full settlement authority is readily available by telephone.
A mediation will progress through several stages:
Introduction: Initially the mediator will give an opening statement to each party. I usually do it separately
with each party which generally describes my training and experience.
Problem Determination: During this stage, each party will give an account of the facts and circumstances to the
mediator explaining what lead to the dispute and the issues in dispute and why.
Mediation Itself: The mediator usually moves from room to room discussing the undisputed issues, if any, and
then focusing on the disputed issues. This helps the mediator identify potential areas of settlement. The mediator may summarize the results of the private sessions with each party and encourage options.
A realistic assessment of the strengths and weaknesses of each party's own position will be the goal of this stage. Negotiations and decision making by the parties will continue unless the mediator
declares an impasse and ends the mediation or continues the mediation in a subsequent session.
Clarification and Agreement Writing: If a mediated settlement agreement is reached, the terms of any settlement
will be written and signed by the parties and their counsel, if any.
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