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Jonathan Rosenfeld

August 23, 2021

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Are you required to participate in mediation and do not understand the process? Are you worried about the outcome without legal representation? At Rosenfeld Injury Lawyers, LLC, our attorneys serve as legal advocates for litigants to protect their rights.

Call our law office at (888) 424-5757 (toll-free phone call) or use our contact form today to schedule a consultation. We can discuss the requirement of participating in mediation and guide you through the process to maximize the results.

Mediation is an alternative dispute resolution (ADR) that can resolve disputes without the hostility that can occur during traditional litigation in front of a judge or jury. According to the American Bar Association, an informal mediation session allows each side to share their view, with an impartial mediator (a neutral third party) guiding the discussion.

The mediation process occurs in a private, confidential setting where all parties can solve their legal issues. In this scenario, the mediator does not force all parties to reach a dispute resolution or accept any specific settlement terms.

Who Participates in Mediation?

Competing businesses, business partnerships, and divorcing couples often use mediators to negotiate disputes and conflicts to reach an agreement and move on. Mediation is highly effective to avoid tension between business and family relationships that tends to stress everyone.

The mediator moderates the mediation process, guiding both sides to work to avoid confrontation and arguments. However, mediation is usually accomplished when each side makes concessions during the process through a mediated agreement.

The mediation process is not about determining the truth or fault responsible for the seemingly irreconcilable dispute.

Typically, the question of which side is right or wrong is a less critical part of the dispute where the mediator attempts to resolve a problem.

Utilizing effective problem-solving negotiation techniques, the mediator encourages all parties to create a solution that focuses on each individual’s needs. The mediator helps all parties resolve the case, avoiding the often painful petitioning of the court to resolve their disputes.

Providing legal information during mediation empowers the disputants to solve their conflict by reaching a win-win solution.

Mediation Process Provides an Alternative Dispute Resolution Opportunity

Facilitative mediation is a cost-effective tool where parties reach an agreement using a mediator instead of a judge.

Mediation creates an atmosphere where all parties can talk about the issue and find a way out of their circumstances using a neutral third person.

The mediation agreement outlines how any possible settlement will occur and what information needs to be shared by both parties during negotiations. The mediator acts as a neutral go-between involving opposing interests and works to bring both sides together by focusing on issues and eliminating communication obstacles.

During the mediation process, the parties can present creative ideas and solutions in an informal setting. Typically, mediation takes place in a private meeting with the legal advice and support of legal counsel.

The roles of the mediator and conflict resolution attorneys help the parties improve communications to find creative solutions to resolve the conflict and disputes.

Sometimes, experts are hired to participate in evaluative mediation in industries where experts are required to understand the controversy’s nature and complexity. With expert assistance as a neutral third party, the disputing parties might agree to a fair or reasonable settlement.

Mediation Process Benefits

Dispute parties have numerous reasons to choose a mediator over traditional litigation to avoid the unpredictable outcome of going to court to find a resolution. Every party can enjoy the benefits of mediation, including a timely resolution, affordability, confidentiality, private sessions, and participation in dispute resolution that avoids litigation.

The cost of using a mediator is significantly less than the time, money, and energy spent on litigating the dispute in the courts. The cost of mediation is usually based on the neutral third party’s mediation experience and training. Usually, paying the mediator’s hourly rate is significantly more affordable than paying an attorney by the hour.

All parties involved can schedule mediation much quicker than getting a court date in almost all jurisdictions.

Based on the mediator scheduling, mediations can occur on regular weekdays, evenings, and weekends. Mediation is not held in the public forum but in a private setting where all testimony, evidence, and information is not publicly recorded other than the signed agreement to mediate, avoiding publicity.

All parties will sign the settlement agreement before holding a conference. The mediator cannot serve as a neutral person during the mediation process and then provide testimony as a voluntary witness if the case goes to trial.

If the case eventually goes to trial, mediation allows the parties to see each side’s strengths and weaknesses if they present their case’s merits to the judge. If both sides find a mutually agreeable resolution in reaching a negotiated settlement during the mediation process, the mediator can get authority to convey demands and offers to both sides.

How Mediators Help Settle Disputes

Most mediations provide an opportunity to resolve a legal claim with underlying issues that are the crucial components of the conflict. Mediation typically begins as a joint session where both disputing parties with some business or spousal relationship come together with an experienced mediator conducting sessions in one or more private meetings.

Conversely, the mediator may request separate sessions, where both parties shuttle back and forth to reach a final settlement and settle disputes. In this scenario, both parties discuss their concerns away from each other but in the presence of a neutral person.

At these times, the role of the mediator working in separate settings might help reduce the conflicting dispute resolution through a written contract that could be enforceable by the justice system. In addition, the mediator helps the parties by establishing ground rules and the session’s agenda.

In a joint session, the mediator or co-mediators will explain the process, the decision-making role, and if the decision is binding or non-binding. Sometimes, all mediation disputants will present opening statements and express their feelings by describing how they would like to settle the case and avoid going to trial.

Problem Determination

During the problem determination phase of mediation, all parties will account for circumstances and facts leading to their disputes. Typically, mediators will identify the issues and summarize the conflict for an easier understanding.

Generating Options and Alternatives

The conflicted parties, working in separate or joint sessions (caucus) using mediators, can help identify, clarify, and define how they can negotiate a settlement. Typically, mediators will summarize the private session’s results with both sides and encourage an exchange of options that would help the negotiation.

At this point, the realistic assessment of each party’s strengths and weaknesses can serve as a goal to mediate a solution and proceed to an agreement. Thus, decision-making and negotiations involving all parties are usually ongoing unless the mediators declare an impasse and end that session and all subsequent sessions.

If an agreement is reached between all parties, everyone signs a written statement outlining the negotiated resolution presented to the court. At that point, the judge will review the mediation document and issue a court order that approves the signed resolution.

If mediation fails, the mediator may strive to set new rules where all parties agree to avoid litigation until additional mediation sessions can be conducted and the parties find a solution. Typically, mediation agreements specify that the words spoken and evidence provided are confidential and not deemed an admission or use against any party in any other proceedings.

If no resolution of the dispute can be achieved, litigation is usually the only other option other than continuing mediation. The same is true if one party fails to participate in the mediation process or does not agree to arbitration using an arbitrator to resolve the dispute. Participation in the mediation process is often not mandatory if they decide not to proceed with the mediation.

At the point where there is an impasse, and nothing has been resolved, the role of the mediator is over. Now, a judge will hear the case where differences are settled in open court without confidentiality barriers when sharing information in a private meeting.

There are no penalties for failing to settle during the mediation process based on state or federal law. However, the court might decide to order penalties for any party choosing not to participate in a mediation conference or make a good faith offer during mediation to negotiate a settlement.

Is a Mediation Attorney Necessary for Conflict Resolution?

Nearly all mediations will not require any party to obtain legal representation. However, under specific situations, discussing your case with a mediation attorney who understands your legal issue and is familiar with the arbitration/mediation processes can provide you the information you need for a more successful outcome.

Mediation is a valuable tool to help people through disputes and conflicts without using the courts. The mediation rules are not like the legal processes and state laws but instead provide a straightforward solution to resolving conflict.

In cases involving property rights, ownership, or assets splitting, a mediation lawyer can sort through the legal consequences of decision-making that can best serve all parties involved.

Mediation requires experience and a comprehensive understanding of civil law. Mediation attorneys are usually highly trained to seek the middle-ground necessary to achieve the best outcomes through negotiation.

A competent attorney with experience in mediation can ensure that all parties will not set foot in the courtroom.

Mediators can facilitate all forms of legal disputes, including property division, child support, spousal support, and other conflicts that require resolutions.

Avoiding litigation is crucial to avoid exposing vulnerable personal financial information in a public forum in court as a part of the public record.

Legal Advice on Mediation and Arbitration

Mediations are often highly successful avenues for resolving conflict between business partners, competing companies, and married couples. The process allows individuals to be civil to one another during and after the session with the mediator.

Are you required to engage in mediation with a business partner or spouse and need legal advice? Are you expecting the most favorable terms? The personal injury attorneys at Rosenfeld Injury Lawyers, LLC can help you through the challenging process and alleviate the burden of resolving your case to allow you to focus on moving forward.

Call a mediation lawyer at (888) 424-5757 (toll-free phone call) or use the contact form today to schedule a free consultation. All confidential and sensitive information you share with our legal team remains private through an attorney-client relationship.


• American Bar Association Mediation – Alternative Dispute Resolution

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