Mediation is a service that is offered here at Smiley Law Firm, LLC and for good reason. I am anAmerican Arbitration Association (AAA) trained mediator who believes that alternative dispute resolution (ADR) is the answer to a broken litigation system.
Mediation Is Good
There are a number of different types of ways to avoid a law suit or litigation. The most common types of ADR are arbitration, negotiation and mediation. Arbitration, like litigation, is binding and you are at the mercy of the decision maker, the arbitrator. This process has useful purposes but is not a great fit for all circumstances.
Negotiation is more of an informal process where the parties try to work out a deal on their own. This process sounds good in theory, but does not apply well to real life, due to the human element. The reason why the parties are at an impasse is because there is a disagreement or dispute. Typically parties do not just give up their position without professional help. This would be similar to self-psychiatry, which is not practical.
Mediation is more in the middle of these two processes. In Mediation there is not one decision maker like a judge or arbitrator. Parties actually have to come up with their own settlement or compromise in order for a deal to be made. There is however, a trained third party who knows how to facilitate a deal. This is the psychiatrist to continue my analogy from above.
Often times mediation is a very good way for parties to get a deal done. Mediation is also useful because it can be deployed at any time during any other type of dispute resolution method. Parties can mediate when there is a dispute at any stage. For example, you can mediate when a default in a contract first occurs, at the beginning of litigation, on the eve of trial, after discovery is complete, or leading up to an arbitration. Skilled attorneys will pull the mediation card at strategic instances so that they can maximize a deal for their clients without having to incur the massive costs associated with litigation and arbitration.
Parties need to be in the right frame of mind for a mediation to be successful. This does not mean that parties need to be willing to give up everything in order to get a deal done, but it does mean some concessions must be made to facilitate a deal. Nothing kills a mediation faster than a party who is not willing to take part in the process and engage in the give-and-take mindset.
Time is your friend. Many mediation sessions take a number of hours or even days to complete. If a deal is going to be made it often takes time to mature and come to light. There are many small details which need to be vetted before a deal is complete. In my experience the longer parties give to the process, the higher chance for success. This is not always sexy when parties are paying by the hour, but it is a truth.
The mediator cannot give up. When participating in a mediation session as an attorney, I often encounter mediators who simply want to start swapping numbers in order to conclude the deal faster. This leads to impasse early on and the mediator will give up, thus losing the parties interest in working out a deal. Good mediators will hash out the parties issues, one by one, and work out a deal on each. Then they will work to complete a full and final deal.
There are countless other tips that if used properly will help to facilitate a successful mediation. Feel free to contact Smiley Law to inquire about our mediation services, you will be glad you did.