Mari J. Frank, Esq & Associates, Laguna Niguel, California Atorney and Meditor, Laguna Niguel, California
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arrow.gif (72 bytes) See a flyer on "A parachute for your business disputes".

 

Civil Mediation

What is 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 following:

  1. Identify the issues involved;
  2. Develop communication so that each party understands the other’s position and concerns regarding each of the issues;
  3. Determine alternatives available to resolve the various issues in conflict;
  4. Discuss the options for resolution in light of the interests of each of the participants; and
  5. Work out the terms of an agreement acceptable to all.
  6. Finalize a written agreement to dismiss a court action or file a stipulated judgment.

What a mediator is not

  1. A mediator is not an advocate for any of the parties;
  2. The mediator is not a representative or private counsel for any of the participants;
  3. The mediator is not a judge or arbitrator who will evaluate the information and make a decision for the parties.
  4. 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 common issues?

  • 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
  • Homeowner’s Association conflicts
  • Real Property disputes

Participant’s duties

The mediation process requires that the parties:

  1. 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);
  2. 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 exorbitant expense.

Role of independent counsel

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 choice.

Confidentiality agreement

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.

Voluntary process

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.

Privacy Advantage

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.

Mediator’s Fees

The mediator’s 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 needed.

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.

Conclusion

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".

 
 

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