Mediation is a non-binding, informal settlement conference facilitated by the efforts of one of NAM’s (National Arbitration and Mediation) 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.