Mediation

An Introduction

The purpose of our courts is to help resolve disputes. Most people are familiar with the traditional means of resolving disputes in court: trial. The trial is what we typically read about in the newspaper or view on television. Leading up to and through trial, parties represented by counsel or themselves argue their positions to a judge and receive a binding decision.

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Traditionally, communications and practices leading up to trial are adversarial in nature and result in one party winning and the other party losing.

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However, more recently, courts are encouraging parties to resolve without trial. Statistically, nearly 97% of all civil cases are resolved through some type of settlement or judicial process before the trial date.

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The Michigan Supreme Court now offers additional alternative processes to help parties resolve disputes. Here, we explain these processes and how you can take advantage of them.

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Recognizing the value of these alternative dispute resolution (ADR) processes and their demonstrated ability to help people resolve disputes to their satisfaction, the Michigan Supreme Court has authorized judges to order parties to at least try a dispute resolution process as an alternative to the adversarial court process.

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No one will ask that you reach an agreement with which you are not satisfied. You do not forfeit your right to any aspect of the legal process by attending mediation, and you can always choose to preserve your right to a trial.

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What Is Mediation

Mediation is a process in which the parties in the dispute meet with a trained neutral person -- the mediator, to work out an acceptable resolution. In a trial, one party generally wins while the other loses. In mediation, the parties themselves find options for resolving their matter.

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The mediator will not decide who is right or wrong, or otherwise take sides, but identifies how a matter should be resolved. The mediator’s job is to help parties find mutually beneficial solutions for the matter in dispute. Throughout the mediation process, the mediator makes sure that everyone has a chance to be heard and contribute ideas for resolution.

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A judge may decide your case might best be settled through mediation. You and the other parties to the dispute might be ordered to try mediation.

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Most matters can be completed in just one mediation session; however, some complex matters may take several sessions. Experience suggests that nearly everyone finds that mediation is helpful, even if a dispute is not completely resolved.

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What Happens in Mediation

Once the parties have selected a mediator, or if a mediator has been assigned by the court, the mediator will schedule your mediation session. Typically, mediators request that certain written documents be provided in advance of meeting.

 

A typical mediation session begins with the mediator and parties establishing some ground rules. The mediator and parties also determine how the mediation process is to move forward.

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The mediator then works with the parties to determine exactly what issues are in dispute, and the parties will be encouraged to identify options for resolving the various issues.

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Often, mediation is the first time the lawyers, clients and individuals with settlement authority actually face each other across the table. For the process to work effectively, a few courtesies should be observed.

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Obviously, yelling, swearing or similar insults not only offend but may invoke a similar response. Everyone is encouraged to LISTEN - a key ingredient if you are to understand the other side’s case. Frankly, a lot more will be accomplished if everyone is candid, courteous and listens. Please be realistic in your expectations and not afraid to concede points strategically when necessary and appropriate.

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Generating settlement options is often the most exciting part of mediation, because very frequently the parties are able to find creative options for resolving the dispute that result in “win-win” solutions. This is in contrast to obtaining a decision by a judge, who often can only rule for one side or the other.

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The Mediator

The mediator is not like a judge; the mediator will not impose any solutions nor identify which is the best solution for you. Deciding how you would like to resolve your dispute remains entirely up to you and your lawyer.

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Mediation is confidential. Everything you say, including settlement dollar figures, is considered settlement discussion and cannot come into evidence during trial, if the case is not resolved.

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Discussions between you and your lawyer are most commonly helpful in a separate meeting, where your conversations with the mediator are confidential and are not heard by the other parties or their attorneys.

 

Even in the best of mediation sessions, there are times when parties are not able to find satisfactory settlement options. When that happens, the mediation is stopped and the parties return to court just as if mediation had not take place. Inability to reach agreement in mediation will not negatively impact movement toward trial. Because mediation is confidential, the judge and jury will have no knowledge of what was said or done in mediation.

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Why Choose Mediation?

The Michigan Supreme Court encourages parties to try mediation because of its demonstrated success in helping parties resolve disputes to their satisfaction. It’s as simple as this: In the traditional court process, when a judge or jury enters a judgment in a case, usually one party wins and the other loses. In the mediation, all parties have a chance to reach an acceptable solution, and it can be a solution quite different from the one imposed by the judge. Put differently, parties have maximum control over how to resolve their dispute in mediation. In the court process, parties give all authority to resolve their case to the judge.

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Mediation can be scheduled quickly and reduce costs of litigating a matter through trial.

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Because court proceedings are public, and documents appearing in court files are generally public, parties frequently choose mediation to keep various aspects of their dispute private. Many parties like to enter mediation because it is a confidential process; anything the parties produce or say in the mediation process is confidential and, with very few exceptions, cannot be revealed.

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Exceptions to writings and statements being confidential include:

• Information forwarded to the court to advise that mediation occurred and whether an agreement was reached

• Information necessary for the court to administer the program

• Information required if there is a dispute over the fees in mediation

 

How Much Does Mediation Cost?

Mediators, like other professionals, charge for their services, and the parties to the dispute are responsible for paying the mediator. Usually, parties split the cost of mediation equally, but other arrangements may be reached working either through the mediator or the court.

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How Do I Select a Mediator?

If you decide to try mediation on your own, or if you are ordered to try mediation, you and the other persons involved in the dispute have the right to select your own mediator.

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Some factors you should consider in selecting your own mediator include:

• The extent of the person’s mediation training and continuing education

• How much experience the person has had as a mediator

• How quickly the mediator would be able to work with you

• The mediator’s fees and the services included

• The type of mediation process used by the mediator

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If you are ordered to try mediation and you and the party/ies do not select a mediator on your own, the court will select one. Mediators on the court roster have completed a training program and have mediation experience. There are typically two styles of mediation – evaluative and facilitative.

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Evaluative Mediators

The evaluative mediator acts as the expert. The parties have hired him/her because they are at an impasse, and without this expert they will never settle. The evaluative mediator’s role is to learn each side’s position, then evaluate the strengths and weaknesses of their respective positions, offer a position as to how the case might go in court, and suggest possible resolutions. The evaluative mediator therefore spends much of the time in separate caucuses with each party. In addition, the evaluative mediator defines the issues substantively, so that only legal issues are on the table, and the only outcome discussed is some kind of monetary payment from the defendant to the plaintiff.

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Facilitative Mediators

The facilitative mediator is hired because communication has broken down and the parties need someone to get them talking to each other. The facilitative mediator’s role is bringing the parties together and facilitating their communication with one another, helping them sort out issues and explore underlying interests, and encouraging them to develop, exchange and evaluate options for resolution, never revealing her/his personal opinions about the case.