Mediation: What is it and how does it work?

Mediation is a way to resolve a dispute before a judge or jury makes the ultimate decision. Sometimes mediation occurs before attorneys get involved – commonly referred to as “pre-suit” mediation. Mediation is also used after a lawsuit has been filed. Since 80-90% of all cases settle during a mediation session and since most judges will now not give the parties a trial date before they have gone through the mediation process, it is important to know what mediation is and understand how mediation works.

Step 1. The parties agree to a mediator. The mediator chosen is typically an attorney located where the dispute is centered. Typically the mediator has had prior experience handling cases like the dispute in question and is familiar with the issues involved.

Step 2. The mediator will send out a list of potential dates for the mediation to the parties and a date will be selected for the mediation session. Mediation typically occurs at the mediator’s office and usually lasts half a day, although sometimes a full day is necessary.

Step 3. A few days before the mediation session, the parties send to the mediator a confidential mediation statement, which tells the mediator their sides of the story. The confidential mediation submissions are held in strict confidence by the mediator and are not shared with other parties, absent express consent.

Step 4. The mediation session occurs and, hopefully, produces a settlement.It is often said that a mediator’s job is to make both sides equally unhappy – one party taking less than what it wants and the other party paying more than what it wants. Assuming a successful resolution is achieved, prior to leaving the mediation session, a binding agreement is drafted by the mediator and signed by all parties. This agreement is a binding contract and enforceable in a court of law so no one can change their minds later. Although parties often take or receive less than they want in a settlement, ending a litigation is generally in all parties’ best interests. Therefore, any unhappiness that exists with the amount paid or received generally dissipates quickly and turns into relief and satisfaction with the result.

Step 5. The mediator sends out a bill for services rendered and the parties typically split the mediator’s bill with each side paying 50% for the mediation session.

Should you or anyone you know have a dispute that is ripe for mediation, Barrett is located in the heart of downtown Fort Wayne, has its own mediation center, and has free parking right next to its building. We look forward to working with you or with someone you know in the future!

Barrett McNagny LLP

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