Frequently Asked Questions about Mediation
- How much time and money is involved?
- This will depend on the complexity of the issues and the number of
parties. Many cases can be concluded in a single session, lasting 2-3
hours. Some can take several sessions over the course of a few weeks.
In just about every case, mediation is far less expensive than litigation.
The parties share the cost of a single mediator, instead of each paying
for an attorney. Time is usually used far more efficiently with mediation
since the parties are dealing directly with each other. When your Soluna
mediator has had a chance to review your specific situation, we can
give you a rough estimate of what to expect.
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- What's the difference between mediation
and litigation?
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- In litigation, the outcome is determined by the judge or jury. In
mediation, the outcome is determined by the parties themselves. The
mediator makes no decisions; rather, the mediator serves as a neutral
active facilitator of the negotiating process.
Litigation is an adversarial process. The purpose of litigation
is to win at the expense of the other party, to prove that you
are right and the other party is wrong, and to take from the other
party as much as the process allows you to take. The expense of
litigation is often the greatest damage to both parties, eclipsing
the amount they were fighting over at the outset. Most litigation
cases result in at least one of the parties feeling devastated
- quite often both parties come away from litigation feeling like
the losers.
Mediation is a peacemaking process. The purpose of mediation
is to provide a collaborative means for parties to cease hostilities
and end their conflict. Mediation focuses on the parties' interests rather
than their positions, and explores ways to meet those interests in a
negotiated settlement. The majority of mediated agreements
result in all of the parties feeling
they
have
done
the right thing
and
achieved
a
positive
result. There are generally no winners or losers in mediation.
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In the Congressional Findings preface to the Administrative Dispute
Resolution Act of 1996, The United States Congress found that "alternative
means of dispute resolution have been used in the private sector
for many years and, in appropriate circumstances, have yielded
decisions that are faster, less expensive, and less contentious
[and] can lead to more creative, efficient and sensible outcomes".
NONETHELESS, there are certainly cases in which
it is most appropriate to use litigation and not mediation. Factors
such as the disposition of the parties, the nature of the conflict,
the emotional and intellectual distance between the positions,
and many other considerations often make litigation the sensible
choice.
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- Do I need an attorney?
- If you have been sued or you are already involved with the court
system, you ought to have an attorney advising you as to your legal
rights and obligations. You do not need to hire an attorney in order
to participate in mediation. As the process unfolds, we may advise
parties to seek legal advice. That will be your decision - you are
not required to be represented by an attorney during mediation.
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- Are there any other requirements in order
to use mediation?
- Mediation is a process of negotiation, of give and take. In order
for it to succeed, all parties must be willing to be flexible, and
to be clear about their true needs. If one party is out to destroy
another regardless of cost or damage to one's self, mediation is not
going to work. If everyone is willing to work for a peaceful outcome,
mediation usually succeeds.
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- How do I get started?
- You can call us at 325-5923, use the Contact
Form on this site, or email David
Rodman. We'll chat with you about the parties and the general
nature of the conflict. We can, if you wish, take care of contacting
the other parties and arranging a time and place for the first session.
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- What goes on in mediation?
- The process begins with gathering information from all parties. The
mediator will then convene an initial session during which the issues
are identified and fleshed out a little bit. The mediator will also
meet privately with each party at least once during this initial session.
The process then continues with each party addressing the mediator
and the mediator shuttling among the parties. Sometimes this can be
done with all parties in the same room together, sometimes not. The
mediator's task is to carry and keep alive the prospect of a resolution
that all sides can live with.
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- Can I call witnesses?
- Ordinarily, witnesses and evidence are not part of the mediation
process. This is because mediation is focused primarily on what the
parties want to negotiate, not what they can prove against each other.
When there is an question of fact, all parties may agree
on a method of resolving it, such as accepting the opinion of an outside
expert, examining specific documents, or a similar evidentiary process.
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- Is a mediated agreement legally binding?
- If you are involved in litigation and you mediate an agreement,
your attorney and the opposing party's attorney will finalize the document
and file it with the court, and it will be binding as the settlement
agreement. If you use mediation in place of litigation and
do not have
attorneys
involved,
and the outcome is a written
agreement signed by all parties, that agreement is binding as a contract.
Since mediated agreements arise out of the parties' own interests,
it is not usually necessary to seek legal enforcement of them.
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- Is mediation confidential?
- Yes. Unlike litigation, in which all of the proceedings become public
knowledge unless they are specifically protected by a court order,
mediation takes place under a strict pledge of confidentiality. The
mediator will not reveal or discuss anything that happens in the mediation.
The courts here on the Big Island are very supportive of this necessary
protection and have cooperated with mediators repeatedly to refuse
or quash subpoenas and to protect the confidentiality of the mediation
sessions.
Mediators are required to report knowledge of child abuse or
of the infliction of bodily harm.
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- What if we cannot reach agreement?
- Mediation does not preclude litigation. If parties are unable to
reach a mediated agreement, they can still pursue litigation, and the
litigation usually proceeds much more efficiently as a result of the
mediation, because even though the parties did not reach a settlement,
mediation tends to clarify issues.
It
is usually a very simple matter to have a litigation continued for
the
purpose of attempting mediation, especially when all parties agree
to make that attempt. If the mediation fails, the litigation picks
up where it left off. Nothing is lost but a relatively insignificant
amount of time and money, compared with the expenditures of both demanded
by litigation.
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