Mediation In Practice

The mediation process is commenced upon the agreement of two or more parties to a dispute, or an order issued by a judge, to resolve their differences through a mediator, who is a neutral third party acting as a conduit and sounding board. In other words, the mediator may not take sides and is paid by all parties equally (unless there is a prior agreement), while conducting information from one party to another, as well as probing into the parties’ claims as a means to assess all possibilities as to how the matter may be resolved. This process is far simpler, faster, less costly, and less stressful than litigation, which would only be undertaken with a substantial monetary dispute. Mediation is a far better approach for disputes with a smaller sum involved, or a dispute where compensation other than financial is desired.

On mediation day, the parties gather in a room, and are permitted to break up into separate rooms at any time. The mediator will explain the process in that everything said and any information given during mediation is confidential as to any subsequent court appearance, and the mediator is not permitted to testify or disclose information as to anything he learned during the mediation. The mediator will explain that he will ask difficult questions, and at times it may seem as though he is taking sides, however, the parties must be aware that the mediator’s job is to push both sides toward a compromise, which means that neither party will get exactly what they desire, and all parties must accept this fact. The parties must understand that the mediator has no interest in any of the parties’ settlement of the dispute, and impartiality is the cornerstone of an ethical mediator.

Finally, the mediator will explain that the parties must respect one another’s time to express their points, without interruption. If an agreement is reached then a contract will be drawn up describing the resolution in detail, and if litigation is in progress, the court will enter the agreement into court record, making a violation of the agreement punishible by contempt. The parties must remember that a mediation is a private process, it does not involve the government, unless there is a violation and a judge sanctions a party. The parties then will be permitted to make their initial statements, produce any documents to the other parties, and at that point the actual process of attempting to reach a resolution will commence.

You should always seek out an experienced mediator to handle the resolution process because if a resolution is not reached money and time will have been wasted. Mediators have different approaches; some are meek and do not push a resolution at all, allowing the parties to resolve the dispute. Other mediators will suggest potential resolutions to both sides and attempt to expose weaknesses in the parties’ claims so that it becomes clear that the prospect of litigation would be highly undesirable. The Law Office of Bruce Belenky generally takes the second approach; while maintaining strict neutrality, Mr. Belenky clarifies and crystalizes the facts as they apply to the law that may be applied in any potential litigation so that the parties know where they stand. Mr. Belenky may bring up creative resolutions that could be agreeable to all parties, while always allowing the parties the final say as to whether they will accept any of them. Mr. Belenky has been a highly successful mediator, with a high degree of full agreements being reached in a wide range of business and personal disputes.

Appropriate Cases for Mediation

The decision to proceed with mediation should be a positive prospect due to the fact that the litigation experience is deeply unsavory for most people. Although mediation does not guarantee the precisely desired result it usually ends the dispute far more speedily, cheaply, and predictably than a judge or jury. A prior post addressed the nuances of mediation and the job of the mediator, this post will address the proper types of disputes to seriously consider mediating before going to court for redress.

The most suitable disputes which offer the best prospects for successful mediation are business conflicts. Although a successful mediation mostly depends on the personalities of the parties, which is to say the level of emotional attachment any party feels toward its demands, business conflicts are typically rooted in financial matters and therefore are further removed from a hostile indignation which demands to have its way or no way at all. If a dispute is about money and nothing more, the chances of a mutually acceptable resolution grow exponentially.

Employment disputes are typically ripe for positive resolution and closure due to the fact that all parties are usually very eager to put such a situation behind them. A sample of issues resolved through mediation involve severance pay, the scope of non-compete agreements, use of proprietary information, or breach of an employment agreement.

Contractual disputes are usually ideal to resolve through an attorney mediator because contract drafting and interpretation are specialized areas of law which require a keen attention to detail and ability to clearly elucidate all potential interpretations and ambiguities within any particular contract provision. Too many times contracts are not drafted by contract drafting specialists and leave room for future disputes, the seed for which are planted at the time the parties execute the agreement. Mediation is the perfect time to iron out and correct already existing disputes and known ambiguities, as well as discover new areas which are ripe for conflict and take those sections to a competent drafter to repair the offending provisions after the mediation is complete.

Basic Contracts

In Texas, a contract must be in writing if it is:
1. A promise by an administrator or executor of an estate to pay for the debt of his estate from his own pocket.
2. A promise of any person to act as surety for another.
3. A promise made in exchange for marriage or merely taking up residence with another.
4. A sale of real estate.
5. A lease of real estate for longer than one year.
6. Any agreement which may not be performed within 1 year from date of execution.
7. An agreement pertaining to oil and gas commissions.
8. A promise or warranty of a cure or results made by a health care provider pertaining to medical treatment.

Mediate Don’t Litigate

Have a dispute? Want to sue? Try mediation. This is a process wherein a neutral party, such an attorney, become the medium for communication between the disputing parties. The mediator will probe each side’s case/claim and assess the willingness to compromise. Each party moves little by little toward a position agreeable to both sides, and a settlement agreement is signed. The mediator does not represent either side, although each party is permitted to obtain their own legal representation.

A mediation is successful when neither side completely gets what they want, although the costs in time, monetary outlay, stress, and uncertainty of litigation are all eliminated. A mediation can take half a day or a full day, more in extreme cases. The parties should be made aware that they must be willing to compromise prior to engaging in mediation.