II. Mediation in Modern Society

Mediation as a form of alternative dispute resolution:

A. Neutral mediator assists two parties in resolving a conflict

B. Characteristics:

1. Confidential – may have a confidentiality agreement

2. Parties determine the outcome together as compared to having a judge or arbitrator decide

3. No discovery

4. Generally conducted in one day

5. Settlement agreements are binding and can be enforced in court

6. Much less costly than a litigation

7. Doesn’t disrupt the business

8. May preserve a business relationship

C. Used in many areas of the law

1. Situations where the parties want to work out the solution themselves and don’t want a protracted and costly court proceeding–Matrimonial – divorce, custody

2. Situations where there are a large number of cases and the system can’t handle them – EEOC (100,000 new charges per year); federal court – mandatory mediation for employment cases; insurance claims – Hurricane Sandy

3. Cases where the matter in dispute has a small value – small claims courts (value in dispute under $5,000)

4. Community disputes – may not involve money

D. Mediation Process

1. Parties select a mediator

2. Considerations in selecting a mediator:

A. Expertise in the subject area

B. Reputation

C. Prior dealings with the parties

D. Cost – hourly rate varies widely – some mediators in the U.S. cost $10,000 per day – others have lower hourly rates – court rate:

E. Sometimes mediators are specified – a collective bargaining agreement may provide that three specific people will mediate any dispute arising under the contract

F. Sometimes the mediators are provided

1. At EEOC, we have mediators on staff – free mediations

2. The American Arbitration Association provided mediators for insurance claims involving homeowner disputes

Mediation

1. Introduction

Everyone at the table

Mediator discloses prior dealings with anyone at the table

Mediator describes her background

2. Confidentiality agreement – signed

3. Each side gives her own side of the issue – a chance to vent

4. Mediator may caucus first with claimant – find out initial demand, possibly more venting

5. Mediator may repeat and rephrase, to confirm understanding

6. Convey demand to other side – may get venting from this side too -get counter offer

7. This is a fluid process, so may bring different parties together at different times - sometimes may have attorneys speak privately

8. Sometimes may have parties speak privately – one case I had, it was very important for the claimant to speak to the President of the company – that resolved the case

9. Whatever seems to move the process forward

10. Eventually reach an agreement

11. May need to use a mediator’s proposal to bridge final gap

12. Settlement agreement – signed by all – enforceable

13. Because parties have worked out agreement by themselves, don’t usually breach

14. At EEOC, if a party breaches, EEOC or the party can sue to enforce in federal district court – rarely happens

2. What to do if the two parties can’t agree

A. Mediator’s proposal – sometimes at the end of a mediation, the two parties have made a lot of progress toward resolution, but they aren’t done. For example, each side may have given their final offer: claimant is asking for $40,000 and the employer is offering $30,000. The mediator may make a “split the difference” proposal - $35,000. The proposal is made to each side privately, and the parties are given a deadline to respond. If one side agrees but the other doesn’t, that remains private. If both sides agree, then a settlement agreement is drawn up.

B. Sometimes there is something of value that one party can offer the other, which is not money. Cases have been resolved that include: two years of free veterinary service; a delivery of baked goods once a month for one year; having the snow removed from the claimant’s driveway for a whole winter, and a free tie for the attorney. These are things that are valuable, other than money.

Дата добавления: 2015-10-30