MEDIATION
Mediation is a non-binding, informal settlement conference facilitated by the efforts of one
of National Arbitration and Mediation's (NAM's) skilled Mediators. As established by NAM's
Rules and Procedures, discussions held during a mediation conference are confidential. The
Mediator cannot be called as a witness in any subsequent litigation and any settlement offers
made during the conference are not admissible in court.
More than 80% of NAM-mediated cases result in the resolution of all outstanding issues.
When a settlement is reached, a Post-Mediation Agreement is signed by the parties and by the
Mediator to confirm the mutually agreed-upon terms.
Important Points About Mediation
- The Mediator does not render a decision or force the parties to accept a
settlement. Each party must mutually agree upon an outcome for a settlement to be reached.
- All communications in a Mediation are confidential and the Mediator
cannot be called as a witness in any subsequent litigation. Additionally, if settlement is
not reached, any statements made during the proceedings are inadmissible as evidence in
subsequent litigation.
- Any information disclosed to the Mediator by a party in private caucus will not be
revealed to any other party unless permission has been given to do so.
Procedure of a Mediation
The first part of the total time spent in a Mediation is done with all sides present. Each
party will present the general outline of their case and discuss their position. After the
Mediator has a general understanding for the basis of the dispute, the balance of the Mediation
takes the forum of breakaway or individual caucus conferences. It is in these caucuses that
the Mediator works with each of the parties to analyze their case, develop options for
settlement, and break the stalemate.
Why Mediations Work
- Meaningful negotiations between parties may not ever take place without
the assistance of an experienced and skilled Mediator. The Mediator controls and directs the
communications, which make the forum a productive environment for negotiations.
- Negotiations are often unsuccessful because the parties lack essential
negotiation skills. Parties are sometimes interested in "posturing" rather than in resolving
disputes. Often hard bargaining tactics are taken which emphasize the differences in position
rather than seeking a common ground or settlement. Because a Mediator's job is to act as a
buffer and to keep both parties focused on exploring productive avenues to settlement,
posturing and hard bargaining are reduced or eliminated.
- Mediation provides the opportunity for all parties to meet at the
bargaining table for the express purpose of discussing settlement. All parties are able to
focus their entire attention on resolving the dispute.
- During the Mediations' opening exchanges, each party has the opportunity
to educate and influence their opponents. Important issues are emphasized and facts are
presented resulting in each side having a more comprehensive understanding of the
opposition's position.
- Mediation offers each party a "realistic" look at their own case and gives the parties
an idea of what is likely to happen in court. This is particularly important if a plaintiff
attorney has a difficult client and the Mediator communicates to them what to expect at
trial. As it becomes clear to each party what they can expect to achieve, their position on
settlement usually becomes more reasonable and flexible.
Principal Advantage of Using Mediation
Mediation offers both parties incredible cost savings and quick resolution. Many times the
expense of trying a case exceeds the potential award.
Conclusion
Mediation is best considered when there is willingness for compromise on both sides. This
forum works because it brings all parties to the bargaining table where they can realistically
evaluate their positions and safely explore settlement options. National Arbitration and
Mediation, Inc. (NAM) Mediators have been successful in obtaining settlements in over 80% of
their Mediations.
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