Mediation is an alternative dispute resolution process in which a trained neutral third party, the mediator, assists parties in reaching decisions about issues in their case. A mediator’s role is to facilitate communication between the parties, identify issues, and explore settlement options. The goal of mediation is for the parties to make joint decisions and reach a settlement agreement.
Mediation can be very successful in resolving disputes. The role of the mediator is to reach an agreement. The mediator’s role is not to represent or protect either party’s best interests. In contrast, the attorney’s role is to represent and protect the client’s best interests. When and how to involve an attorney in the mediation process depend upon the unique circumstances of each client’s situation.
Some parties choose to participate in mediation voluntarily, when suit has not been filed, because parties want control over the outcome. Sometimes, it makes sense for a party to work with an attorney outside of the mediation sessions and attend the actual sessions without attorneys. Other times, it makes sense for an attorney to attend some or all of the mediation sessions. These decisions are best made in consultation with an attorney.
In contrast, attorneys are generally required to participate in mediation sessions that are ordered by the court because suit has been filed.
In voluntary mediation, some mediators will draft a settlement agreement or term sheet for the parties to sign. Other mediators will provide the parties with a list of mediated terms, leaving it to one of the parties to hire a lawyer to draft the agreement.
In court-ordered mediation, an agreement may be stated in the courtroom, written by the mediator, or recorded in some other fashion, in the presence of the mediator, parties, and attorneys.
At Dragga, Hannon & Wills LLP our attorneys are experienced in:
- assessing the appropriateness of mediation
- helping clients find a mediator suited to the circumstances
- working with the client to develop a mediation plan based on the client’s unique situation, including:
- when and how to involve the attorney in mediation
- a mediation strategy designed to meet the client’s goals
- what to expect in mediation and how to make the sessions as productive and efficient as possible
- how to protect the client’s interests if attorneys are not present at the sessions
- reviewing mediator drafted agreements or drafting agreements based on mediated terms.