About Mediation

Mediation is a dispute resolution process which employs a neutral person to facilitate discussion to end a dispute. In contrast to litigation and arbitration, there is no judge who imposes a decision on you and there is no formal testimony taken. You have control in mediation as to whether and how the dispute will be resolved. Your agreement with the other side defines the terms and conditions of any resolution. 

PARTICIPATION IS WHAT IT IS ALL ABOUT


How can you make mediation work more effectively for you?

Bookmark RESOLUTIONS, my blog that will address specific ideas for improving the mediation experience for you and your clients.  It may also occasionally bring you ideas that come from other mediators who have shared their skills and experience.

Participation is the name of the game.  One of the big reasons why mediation was brought into North Carolina was to bring clients back into the game. 

Before the advent of mediation, clients were becoming less involved in the dispute resolution process. Perhaps this was due to the implementation of formal  “discovery” and its complications or it was just the way the legal process evolved. By the 1980s lawyers were the specialists who had to follow highly detailed procedural rules for ferreting out the facts of a case prior to trial.  Discovery had a noble purpose in that it was designed to make trials less an opportunity for surprise or ambush and more of an opportunity to let a neutral fact-finder decide how the law would see a dispute. 

Mediation, as a mandatory process that requires nothing more than good faith participation,[1] has brought the parties back into the process.  Disputes belong to the parties, not to the lawyers, despite lawyers’ ownership of the legal process.

Tips for Counsel
In advance of a mediation, meet with your client as if you were prepping for a deposition:
  1. Explain the mediation process, including your role and the roles of the opposing lawyer and the mediator.
  2. Explain liability issues and damages, examining weaknesses as well as strengths.
  3. Determine what, if any, assumptions you should make about the other side's case.
  4. Identify the information you would like to obtain from the other side, and what you will do to get it.
  5. Decide what information you will volunteer and what information you can ethically withhold.
  6. Discuss your plans and strategy as well as your best alternative to no agreement.

RESOLUTIONS will share additional ideas to address other aspects of how you help your client participate in the mediation process.




[1] Arguably, the North Carolina rules found in N.C. Gen. Stat. 7A-38.1 do not even require good faith.  They require physical attendance with authority to settle or not, unless excused.  Some local rules in separate judicial districts may impose a duty of good faith.  See e.g. 3A Jud.Dist. Super. Civil. Rule 8.5.