Page 46 - CLT060721

46 ■ JUNE 7, 2021 OPINION

Mediation: Nothing To Lose

and So Much To Gain

By Deborah A. Reperowitz

any corporate executives and in-house parties. Mediators do not render decisions but
counsel believe they would be giving up rather work to draw parties together by eliminat-
Mrights, including their rights to a jury ing obstacles to communication and guiding the
trial and appeals, by engaging in mediation. This process away from confrontation and towards
is incorrect and demonstrates a misunderstand- reconciliation.
ing of the distinction between mediation and The goal of mediation is to resolve the parties’
arbitration. Arbitration is similar to but more differences through terms that are negotiated and
expeditious than litigation in that discovery agreed to by the parties. Thus, mediated settle-
generally is conducted, and one or more neutral ments tend to be business-driven, often involving
individuals preside over a hearing and ultimately non-monetary compromises in addition to, and
render a binding, non-appealable decision re- sometimes instead of, monetary awards. Often
solving the parties’ disputes. This article does not the settlement terms reached by parties through
address arbitration. mediation could not be fashioned by a judge,
Mediation is a party-driven, confidential jury or arbitrator.
process through which an impartial person or A high percentage of mediations between
“neutral” selected by the parties facilitates com- reasonable, well-prepared parties result in settle-
munication and acts as a catalyst between the ment, and parties who construct the terms of

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