|Mediation: Frequently Asked Questions
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by Andy Sirkin and Rosemarie MacGuiness (1/18/13)
This article answers the questions we are most commonly asked about mediation, and describes the methodology used by our office in conducting mediations. In addition to explaining mediation, the article can be useful where one party is trying to convince others to participate. Subjects include:
What is mediation?
Mediation is a relatively informal process where an impartial third party (the “Mediator”) attempts to resolve a dispute between two or more people through discussion and persuasion. The mediator cannot force the disputing parties to agree or to participate; however, effective mediators are remarkably successful in creating consensus among parties who are barely communicating (or unable to communicate with each other at all), and who are each absolutely convinced that they are right and that the other party is wrong or dishonest.
What is the difference between arbitration and mediation?
Arbitration is a slightly less formal version of a court trial, where an impartial third party (the “Arbitrator”) acts like a judge, hears and examines evidence, and makes a decision about who is right and who is wrong. The arbitrator’s decision can be binding or non-binding, depending on type of process the parties choose in advance. In a binding arbitration, each party is forced to abide by the arbitrator’s decision regardless of whether he/she agrees with that decision, and regardless of whether the decision is right or wrong. In mediation, no one decides who is right and who is wrong; either the mediator finds a solution on which the parties agree, or he/she does not. No one in a mediation is forced to accept a decision or result with which he/she does not agree, and any party can leave a mediation if he/she feels it is no longer productive.
How often does the mediation process work?
The success rate of mediation ranges from 77%-98% depending on type of dispute. The success rate in our office for mediation of disputes relating to real estate co-ownership, real estate contracts, and homeowners associations, is approximately 95%.
What does the mediator do to try to resolve disputes?
Mediators have widely disparate styles and favor different methodologies, and a skilled mediator will tailor his/her approach to the type of dispute and the personalities of the parties. Our office employs these general principals to resolve disputes through mediation:
- We organize the procedure so that each issue in dispute is clearly defined and discussed in an orderly manner.
- We recognize that some people are less articulate than others, or less skilled at argumentation and persuasion. Regardless of whether we agree with a party’s position, we will assist him/her to explain and defend that position, and to effectively respond to claims made by other participants.
- We control the flow of discussion by preventing interruptions, raised voices, and abuse. This ensures that each party will be able to fully express and explain his/her point of view. In rare occasions, we place the participants in separate rooms to accomplish this goal.
- We provide our opinion regarding the applicable law and/or contractual provisions, and explain how we think an arbitrator or court would rule on each issue.
- We formulate one or more proposed resolution of each disputed issue that we think is most fair, most closely in conformity with applicable law, and most likely to be acceptable to the parties. We then explain and defend each of these proposed resolutions, and try to convince all of the parties to accept one or more of them.
- We describe the risks of leaving the mediation without a resolution, including the likely costs and time frames of going to arbitration or court, the unpredictability of the result, and the possibility of an adverse decision.
How can a mediator make the parties agree?
A mediator cannot force the parties to agree to anything or to do anything. However, skilled mediators are very effective at convincing people that they are not totally and definitely right about everything, that their ultimate success in an arbitration or court fight is not assured, that the mediator’s proposed solution will get them most of what they want without exposing them to the risks of losing in arbitration or court, and that continuing to fight will be expensive, time consuming, and emotionally disruptive. In short, mediators make the parties to agree by convincing them that accepting the mediator’s proposed solution is the best course of action available.
What actually happens during mediation?
In our office, we begin the mediation be explaining the ground rules. We impose strict controls over when each party can speak, and when he/she must stop and let others speak. We establish an initial duration for the mediation session, at the end of which we will pause and determine whether all parties agree that the session is productive and worth continuing. We then let each person briefly summarize the issues he/she wishes to discuss, and create a list of issues for mediation. Next, we proceed through a discussion of each issue, ensuring that each party has an opportunity to tell his/her story, explain his/her position, describe what he/she wants, and respond in an orderly fashion to what others have said; however, we will not let any party monopolize the discussion or continue speaking indefinitely. When we believe someone has fully explained his/her position, we will cut him/her off, and when we believe someone is having difficulty clearly articulating his/her position or responding to others, we will assist. After all parties have spoken on a particular issue, we will express our opinion as to the applicable law or contractual provision, and describe the likely outcome if the parties take the issue to arbitration or court. We will then explain and justify one or more suggested resolution, and allow the parties to react to our suggestions. Through these reactions, we will eliminate or adapt the suggestions, then attempt to convince each party that agreeing to the suggested resolution is better for them than continuing to fight. When this process is successful, we incorporate the agreed-upon solution in a written document that all participants sign. When possible, we prepare this document during the mediation and have all parties sign it before they leave our office.
If the parties are unable to address each other directly in an orderly and respectful way, we will separate them into different rooms and conduct “shuttle diplomacy”. In this process, we listen to each party and convey his/her point of view to each of the other parties. On those rare occasions where the parties are not close to agreeing and the process does not seem to be productive, one or more parties may choose to end the mediation. Any party is free to leave the mediation at any time, although we try to convince all parties to remain at least through the initially-agreed duration.
Is each party in a mediation represented by an attorney?
Each party can choose whether or not to have an attorney represent him/her during mediation. In general, whether or not a party chooses to be represented by an attorney depends on the nature of the dispute and the party’s financial means. In most neighbor and homeowner association mediations handled by our office, none of the parties are represented by attorneys.
Is it possible to win a mediation? Can the mediator make a binding ruling or decision?
There are no winners or losers in mediation. No one can be forced to agree to anything or to do anything. The mediator does not decide who is telling the truth and who is lying, or who is right and who is wrong. No one should expect to get everything he/she wants in a mediation no matter how totally right he/se is. A favorable mediation result is one where each party gets a result that he/she can accept as a better alternative than continuing to fight.
Are agreements reached during mediation binding?
If the parties reach an agreement during mediation, and that agreement is expressed in a written document that all parties sign, then it is binding. When a party does not do what he/she promised to do (or not do) in such a written and signed agreement, the other party can enforce the agreement through arbitration or court action. However, if there is no written and signed document expressing the agreement reached in mediation, that agreement is not binding.
Are mediation sessions recorded or transcribed? Can a party’s statements during mediation be used against him/her?
Mediation sessions are not recorded or transcribed, and statements made during mediation cannot be used as evidence in a subsequent arbitration or court proceeding.
What happens if the parties cannot agree?
If the parties do not agree, the mediation ends without a resolution. The parties are then free to either continue mediation, or proceed to arbitration or court.
What happens if I do not agree with the mediator?
The mediator cannot force you to do anything you do not want to do, and you are free to decline all of the solutions the mediator proposes.
How much does mediation cost?
Mediators generally charge an hourly rate for their time, and these rates vary greatly. In some cases, there is a minimum charge and/or an administration/setup fee. However, it is possible, and generally desirable, to establish a maximum cost by setting a maximum duration for the initial mediation session. If some or all issues remain unresolved at the conclusion of that session, the parties can then decide whether or not it would be worthwhile to continue.
How are mediation costs split?
In disputes relating to written contracts, an allocation of mediation costs is sometimes established in the contract. In other cases, the parties must agree in advance as to how mediation costs will be shared; if they cannot agree on cost allocation, there can be no mediation. Our office requires that each party pay his/her share of the costs of the agreed duration of the initial mediation session in advance. If the parties continue mediation beyond the initial session, each party must pay his/her share of the cost for the agreed duration of the continued session before beginning that session.
How long does mediation take?
The duration of mediation depends on the number and types of issues in dispute. In many cases, the mediation can be concluded in 1-2 hours and it is almost always possible to determine the likelihood of success of the mediation in the first hour.
If I think mediation might be a good idea, how can I start the process?
Some contracts require mediation as a first step in resolving disputes, and some of these allow each party to compel others to participate and/or impose penalties when a party refuses to participate. Contracts that requires mediation generally describe the steps that a party wishing to mediate must follow to begin the process, including how to select a mediator, schedule a date and time, provide notice to the other parties of the mediation, and handle scheduling conflicts and objections from other parties relating to the choice of mediator. Where the dispute is not governed by a written contract that requires mediation, the party who wants to mediate must try to convince the other party or parties to participate, and then try to agree with them regarding a mutually acceptable mediator, a date and time for mediation, and an allocation of mediation costs. Providing the other party or parties with an article like this one can sometimes assist in that process.
Can I force another party to come to mediation?
The only circumstance where one party can force another to mediate is where both parties have signed a written contract agreeing to mediate.
About the authors
Sirkin & Associates provides mediation services for disputes relating to real estate purchase contracts, shared ownership, homeowners associations, tenant in common (TIC), family properties or partnerships, vacation home sharing and timeshare, and other similar matters. Our success rate with real estate dispute mediation is currently above 90%. We achieve this through a combination of patience, careful listening, knowledge of related law, and creativity in proposing solutions and convincing parties why adopting our proposed solutions will be better than continuing to fight. Mediation through our firm is easy to initiate and inexpensive. Neither side needs to hire an attorney. Sessions can be limited to 1-2 hours, and parties pay only for the time used. Since, in most cases, the parties leave the mediation session with a signed agreement, the mediation produces immediate results. While the mediation is best held in person at our office, we also conduct mediations via phone conference.