Facts of Mediation

Do I Need A Lawyer at a Mediation?

Short answer: Probably and can't hurt.

    Mediations are part of the conflict resolution landscape and are almost mandatory in all filed lawsusits in Federal Court now as part of pre-trial procedure. ADR, Alternative Dispute Resolution is highly favored and a lot of disputes can and should be resolved through ADR. Many courts have their own ADR offices/divisions for that purpose. Cases are routinely scheduled for a mediation prior to any trial. There are private mediators available even prior to filing such as JAMS (Judicial Arbitration and Mediation Service).

The most important thing to remember about any Mediation is that it is not an adjudication. It is a facilitated attempt at settlement. For it to work it requires that all parties want to find a resolution given the Best Alternative To a Negotiated Agreement is worse. There is an acronym for that-its the BATNA analysis in legalspeak.

  Mediations can be done, depending on the context in pre-filing stages or after filing litigation. They can be mutually agreed to in agencies like Federal Government EEO offices and the EEOC. The EEOC encourages strongly parties attempt to mediate disputes there before they issue Rights to Sue letters.

Mediation clauses can be written into Employment or Hire Agreements as a first venue for resolving disputes, either internally or with a specified outside recognized Mediation entity. (If you are in an employment dispute check your hire letter or contract for a mediation clause.)

Hiring an Attorney for any Mediation is strongly advised generally. They can add significant value. People sometimes are staring so closely at the trees they can miss the forest of opportunities in mediation. An attorney can gain perspective in a non-emotive rational way that the party sometimes cannot get emotional distance from long enough to see the value in various resolutions. Mediation often offers tangibles in terms of resolutions that are not strictly monetary.  If there are non monetary goals, like preserving an ongoing business relationship the parties enjoy then they may wish to avoid trial but get a fair resolution through mediation. In family law mediation context there are issues in divorce settlements that have to be worked out in addition to divisions of assets such as custody arrangements. 

Mechanically, your attorney will explain how the process works. You should plan a mediation briefing session with your attorney prior to any mediation. Your attorney may also have to work with you developing a mediation brief which is confidential to the process and not something filed in court.

It may be during any mediation that the Mediator will want to speak to the parties separately at which point the attorney exits stage left for a time as the Mediator caucuses with the party separately. Typically the attorney can frame the case for a maximally beneficial presentation. All the parties and stakeholders are typically invited and encouraged to come for as full a resolution as possible. 

The benefits of Mediation can be non monetary which might have significant value. Mediations are usually completely confidential which can help the reputations of both parties and reputations have a recognized "reputational value." Some litigation if made public could affect stock prices. Mediators try to find creative solutions that are out of the box and not always apparent immediately to parties. They can save relationships and preserve opportunity that can be destroyed in litigation. Lawyers skilled in Mediation can facilitate with a Mediator an optimal "win-win" for clients saving them money and aggravation of litigation with solutions that are often not strictly monetary. 

Mediations are not binding unless the parties reach agreement and turn it into an enforceable contract. The Mediator is not a judge but a resolution facilitator. The results are not "judgments" that have to be reported as such. They can ideally achieve mutually amicable settlement agreements by mutual consent. 

Employment situations lend themselves often well to mediation. Discuss with the Attorney whether mediation is a venue you should pursue. It can save you litigation expense and emotional capital. 


Blessed Are The Peacemakers.