Page 47 - CLT060721

OPINION JUNE 7, 2021 ■ 47

their agreements in mediation are more likely between the parties and/or their counsel
to perform their obligations than those whose and the mediator.
resolution has been imposed by a third-party
decisionmaker. Indeed, parties tend to be more Agreements To Mediate
satisfied with solutions that they have created, Agreements to mediate may be very detailed
as compared to solutions that are imposed by a and specific or more general, and they may be
third-party decisionmaker. entered into before or after a dispute arises. It is
recommended that such agreements be negoti-
The Mediation Process ated, entered into and memorialized in writing
The mediation process is informal, flexible, before a disagreement arises when the parties
and tailored to each individual case. If litigation presumably are calm and reasonable. At a mini-
is commenced prior to mediation, the litigation mum, mediation agreements generally contain
generally is stayed or paused while mediation provisions regarding when in the dispute process
proceeds. A downside to mediation is that a mediation will occur (e.g., pre-litigation, after the
party usually can withdraw from the mediation filing of an answer to a complaint, upon the entry
at any time, but reasonable, of an order denying a summa-
willing participants rarely ry judgment motion, upon the
withdraw. The mediation pro- completion of discovery), how
cess often involves: This article takes look at the mediator will be selected
• A preliminary conference the mediation process, (including criteria the media-
to establish procedur- including agreements tor should possess), and any
al ground rules for the to mediate, the benefits special rules the parties wish to
mediation, which is at- of mediation and key govern the mediation (such as
tended by the mediator takeaways. who will attend, how long the
and counsel to all parties; mediation will continue, the
• The submission to the location of the mediation, and
mediator by each par- who will pay the mediator).
ty of a written position
statement and supporting documenta- Benefits of Mediation
tion, which may be confidential or may be The ultimate goal of mediation is for the par-
shared with other parties; ties to reach an agreement resolving all disputes
• Separate pre-mediation conversations be- between them, thus saving costs (in terms of
tween the mediator and each party and/ time, money and manpower) and avoiding dam-
or its counsel, during which the mediator age to brand, reputation and employee morale. A
attempts to gain further insight into the mediated settlement allows the parties to move
party, its goals and its positions; forward with their lives and business, and also
• A mediation attended by the mediator and prevents the diversion of key executive time, the
a representative of each party (with settle- incurrence of lost opportunity costs and dam-
ment authority) and its counsel, which aged relationships that could extend beyond the
could last hours, days, weeks or months; parties to the dispute.
and, Moreover, mediated settlements eliminate the
• If the parties’ disputes have not been ful- litigation risk of “win/lose” decisions, affording
ly resolved, follow-up communications ■ Continued on PAGE 48

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