Mediation: What is it and how does it work?

Posted by: Josh Quinter (jquinter@kaplaw.com)

Alternative dispute resolution was introduced to the legal system years ago as a way to get cases to final resolution faster and contain costs. While these two objectives are not always accomplished with alternative dispute resolution in the modern system, the idea is still inserted into construction contracts and widely used. The concept is seen in two forms: mediation and arbitration.

Mediation Cartoon.jpgSimply stated, mediation is facilitated settlement discussions. The parties to a lawsuit or potential lawsuit agree to meet together with a mediator to try to negotiate a resolution to the case. The process is not binding and the parties are not required to share any information that they do not wish to divulge. Conversely, the discussion is undertaken under the auspices of settlement negotiations so that parties can talk candidly without fear that what they say will be used against them in court.

The logistics of the process most often include an opening session in which the parties and the mediator meet together so that the opposing sides can generally outline their cases and give each other the benefit of understanding how each party sees the case. Most often, the parties are then separated into separate rooms with the mediator shuttling between the rooms to try to broker a deal.

Mediators have differing styles. Some are tough, aggressive, and push their own idea of how the case should resolve. Other mediators are soft spoken, guide the conversation, and try to get the parties to see different perspectives. And there are a plethora of other personalities and approaches. In the end, choosing the right mediator can be the key to a successful mediation.

There is one leading indicator of whether a mediation can be successful though. That element is a commitment by all the parties to the process. If any one party fails to invest in the mediation and show a willingness to compromise, no mediation can be successful.

Mediation is a useful tool to use in construction cases, but it must be used properly to avoid wasting resources and reach a resolution.

We will explain arbitration and how it works in a later post, so be on the lookout for that information.

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