What is Mediation?
Mediation is, “facilitated negotiation” where there is a third party neutral (“Mediator”) who helps the parties negotiate in a more constructive manner. The mediator does not sit as a judge, jury or arbitrator and has no authority to rule in favor of one party or the other. The role of the mediator it to help the parties see past their stated positions to what underlying interests they have, and what creative alternatives exist that can help facilitate a negotiated agreement with the other side. Some advantages of mediation over litigation are:
- The parties themselves get to come up with the solution instead of one side winning and one side losing;
- Mediation takes only a day or two usually, whereas a court battle can take months or years;
- Legal bills are much lower when mediation is successful;
- The parties need not sever their relationship if there is a successful mediation;
- Mediation allows for creative solutions that include, but also go beyond dollars and cents.
To make this more real, let’s take a hypothetical example. Let’s say one person or business is suing another for $26,000 over a contract that went bad. They can spend $5,000 – $10,000 in court fighting it out and one side will win, and the other will lose. Regardless of the outcome, it is likely they will sever their relationship.
If they successfully mediate, however, the parties themselves get to decide what compromise or creative solution they can both live with. Perhaps one party can give the other a discount on future services, help them procure orders from other customers, or recommend them to a position in a trade association. Perhaps some monetary compromise in between $26,000 and $0 is possible, but only after a few hours of mediating in a comfortable environment with a trained neutral whose only job it is to see that the parties feel they were heard, and their concerns were addressed. Maybe there are embarrassing facts that one side is afraid to tell the other, but if it comes out in mediation it will make the other side more likely to understand that this situation is not as clear cut as originally thought. Any of these factors can result in successful mediation where there are no losers and everybody saved money and time.
What training do Mediators have?
In Missouri, there is a Supreme Court Rule called Rule 17 that controls the training of mediators who are referred through the court system. Civil mediators who mediate most commercial and monetary disputes must get a minimum number of hours of approved training. Family law mediators require even more extensive training. Marc Jacob is a Rule-17 approved Mediator in the State of Missouri for civil matters.
Should I sue first or mediate first?
You can really do either. While mediating first can be effective, the unfortunate reality is that parties are often not really willing to mediate until another party has filed suit against them. Once they see the potential for mounting legal bills, mediation starts to look like a pretty good option. If you believe the other side would be willing to mediate prior to litigating, call our office to arrange the mediation. In such a situation you can mediate with or without being represented by an attorney. Otherwise, you will need to engage litigation counsel and can direct them to our mediation services when the time comes.
What is Mediation Counsel?
Mediation Counsel is legal counsel that represents you at a mediation. While traditionally it was your litigator who would fulfill this role, the trend in parts of the country is that clients are demanding more mediation-minded legal counsel be present at mediation sessions, sometimes in addition to a litigator who is familiar with the case and can act as a support to the mediation counsel. Mediation counsel is the lead counsel to the client at the mediation sessions. The goal of mediation counsel is the get the matter settled if it is at all possible and in the best interest of the client, and mediation counsel has no financial incentive to proceed to litigation. For this reason, many clients are now demanding mediation counsel be appointed to act as lead counsel at mediation sessions. In addition, if you are a pro se litigant or if you are mediating prior to litigating, you can benefit from having an attorney familiar with mediation represent you. Our law firm does not engage in protracted litigation and Marc Jacob would be happy to act as mediation counsel and work with your litigator if you have one.