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What to Expect At the Mediation
The
mediation will begin with a joint session. The mediator will introduce
him/herself, and explain the process, emphasizing the confidentiality.
Each
party will then be given an opportunity to tell its side of the story.
The parties should be prepared to discuss their respective positions,
facts about the case and identify the issues. Typically the claimant
goes first. Each side should expect to spend no more than 30 minutes on
his/her presentation. The mediator will then ask a few questions of the
parties, particularly the claimant. This opportunity to be heard, by
the mediator and the other side, is a critical factor in making
mediations work. In effect, a claimant has his day in court.
After
the joint session, the parties are separated into caucuses. The
mediator will ask each party direct questions to draw out information
that would not be disclosed while in the presence of the opposing
party. The mediator will discuss the strengths and weaknesses of each
party’s position, worst and best case scenario and the expenses and
stress if the case goes to trial.
The mediator may shuttle back
and forth several times between the caucuses. Through these caucuses
the mediator is gaining knowledge and facts that can help facilitate a
settlement. Be open with the mediator. This can allow the mediator to
explore many avenues to a solution that may not have been considered
before. Keep in mind that throughout the mediation no one will ever be
forced to accept a settlement. The mediator will never disclose
information to the other side without the party’s permission.
During
the caucuses use the mediator to your advantage. Be collaborative. Be
honest with the mediator when pointing out the strengths and weaknesses
of your case as well as those of the other side.
If a
settlement is reached, the parties will be asked to sign a settlement
agreement form. If the case doesn’t settle, the parties are free to
pursue other remedies, which may include arbitration or continued
negotiations. Often, the parties will reach an agreement within days of
the mediation, generally with the continued involvement of the mediator.
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