civil or commercial mediation?
Civil mediation is a process
whereby a qualified neutral negotiator/mediator assists people in conflict (i.e., business
partners, disputing businesspersons over a contract dispute, vendors, personal injury
claimants) resolve their disputes without the expense, conflict escalation and the time of
litigation. The participants engage in facilitated negotiation rather than delegate their
power to a judge or an arbitrator. In a meeting (or a series of meetings), the
participants (and their attorneys, if the parties have counsel) and the mediator do the
- Identify the issues involved;
- Develop communication so that each party
understands the others position and concerns regarding each of the issues;
- Determine alternatives available to resolve the
various issues in conflict;
- Discuss the options for resolution in light of the
interests of each of the participants; and
- Work out the terms of an
agreement acceptable to all.
- Finalize a written agreement to
dismiss a court action or file a stipulated judgment.
mediator is not
- A mediator is not an advocate for any of
- The mediator is not a representative or
private counsel for any of the participants;
- The mediator is not a
judge or arbitrator who will evaluate the information and make a decision for the parties.
- The resolution comes from
the parties themselves, with the assistance of the mediator. The mediator does not
impose a judgment, but helps the parties to craft a resolution by focusing on problem
solving, not blame.
What are some
- Alleged wrongful acts
- Breach of contract
- Patent/trademark/copyright infringement
- Confusion of duties or responsibilities
- Alleged negligence or alleged intentional acts
- Alleged breach of fiduciary duties
- Probate disputes
- Construction disputes
- Homeowners Association conflicts
- Real Property disputes
The mediation process
requires that the parties:
- Provide full and complete disclosure of all
relevant information, such as conversations, written data, contracts, debts, expenses,
documentation of agreements, invoices, and all information having to do with the issues in
question (only relevant information must be disclosed);
- Act in accordance with guidelines/ground rules of
mutual respect, honesty and problem-solving techniques explained by the mediator; and
Commit to resolving disputes
through the impartial mediation process in order to de-escalate conflict, reduce stress,
save embarrassment for all, and settle quickly and satisfactorily without other
Mediation does not attempt to
deprive the participants of their own attorneys. Each participant is encouraged to
communicate with an attorney of his/her own choice if he/she feels it is necessary. An
advocate attorney may be consulted at the commencement of mediation, or at any time during
the process. The attorney need not be present. Before an agreement is signed, it is
strongly recommended that each party review the agreement with the attorney of his/her
The mediation process is
similar to settlement negotiations between parties to a lawsuit. The participants will
agree in writing that all communications between themselves and the mediator are
confidential, are not admissible in any court of law. Each participant must agree that the
mediator shall not be called as a witness in any subsequent legal proceeding. Each
participant realizes that if mediation does not solve the entire dispute, they may agree
to jointly appoint the mediator as an arbitrator. A party may decide to litigate, although
this is rare. If the parties resort to litigation, the information acquired by any
of the parties during the mediation process may only be used if it could also be
discoverable through litigation or agreed in writing otherwise. A Mediation
Confidentiality Agreement is signed pursuant to the Evidence Code.
Any party may withdraw from
the mediation process at any time. The mediator may also terminate mediation if
continuation would harm or prejudice any party. If the parties agree to settle some
issues, but some remain, the parties may agree to transform the mediator into an
arbitrator by way of a stipulation, or they may appoint an arbitrator to settle the
outstanding issues. Another option is to utilize the court system to resolve the
outstanding issues as a last resort.
With the advent of the
information age and the Internet, court records and financial documents introduced into
evidence are public record, and may be seen by myriad persons. There is a great advantage
to engage in a process that is confidential and provides the privacy in all
procedures. Nothing is revealed except what the parties agree to reveal. This protects the
parties and their businesses, and future careers.
The mediators fees are
not fixed in terms of a flat fee, because there is no way to know how much time will be
required. The parties themselves shall determine the length of time needed. The hours
involved will be affected by the complexity of the issues, the degree of cooperation
between the participants, and the time involved in securing discovery items. The mediator
charges an hourly rate and a deposit fee is required at the time an appointment is set.
The initial retainer is usually
paid for by all the parties equally or proportionally as agreed. In cases where all
parties are able to share the fees, this will be encouraged by the mediator (normally paid
proportionally). The fee issue is also an issue of the mediation and fees may be
reimbursed to parties as agreed. If the parties have not settled after the first six
hours, the fee-sharing for continuing mediation may be negotiated for future sessions, if
The mediator will prepare a
mutually agreeable written agreement, which is presented to all parties for approval once
all the issues have been resolved. Whether or not the parties attend mediation with
attorneys, the parties are encouraged to review their agreement with counsel prior to a
final signing. Often the mediator prepares the agreement with the help of the parties and
counsel if they are present.
Our court system is too
costly, time-consuming, destructive, and inefficient to resolve disputes quickly.
Dragged-out court battled deplete business and personal time and funds. With the
utilization of mediation to resolve disputes, astute business people and wise individuals
empower themselves to problem-solve conflicts, so that they can devote their energies to
positive productivity instead of wasteful adversity.
An effective mediator efficiently
facilitates the resolutions of disputes. Successful mediation de-escalates conflict,
increases trust, saves time, increases morale, and eliminates the high stress and high
cost of a court battle.
Consider mediation early before
the hostility escalates.
See a flyer on "A parachute for your business disputes".