Mediation

Frequently Asked Questions about Mediation

What is mediation?
Isn’t Mediation the same thing as arbitration?

What is the difference between facilitative and evaluative mediators?

Are you a facilitative or evaluative mediator?

What kinds of conflicts can be mediated?

Is it necessary that the mediator have substantive subject matter expertise?

When should we mediate?

Is the mediation really confidential?

How long does it take to mediate a dispute?

Do the parties need to provide anything to the mediator before the mediation?

Where does the mediation take place?

Who should participate in the mediation?

How much does mediation cost?

How do I initiate a mediation?

What is mediation?
Mediation is a process in which a specially trained impartial third party, who has no power to impose any decision upon the parties, helps the parties reach a mutually acceptable resolution of their dispute. It is a voluntary, confidential, and non-adversarial process in which the parties are empowered to make their own decisions. Although the parties are usually accompanied by their attorneys, the parties often speak for themselves and are encouraged to participate fully in the process. Instead of evidentiary type hearings, the parties discuss their wants, needs and interests with each other in joint meetings and with the mediator in private caucuses, all in an informal setting under the supervision and management of the mediator.

Isn’t Mediation the same thing as arbitration?
No. Mediation is not just another form of litigation or arbitration, but is a quantum leap to an entirely different paradigm for conflict resolution. Whereas litigation and arbitration are adversarial contests in which third parties are empowered to determine winners and losers, mediation is a collaborative process in which the parties are empowered to negotiate and agree upon their own solutions to their own problems with the help of the mediator.

What is the difference between facilitative and evaluative mediators?
A facilitative mediator believes mediation is a process in which the parties are the ones empowered to fashion their own solution to their own problem. The mediator is an impartial third party with no power who facilitates that process, without pressure, coercion or manipulation. A facilitative mediator is more inclined to help the parties change their mind set about the conflict; assist them in focusing on their real needs and interests as opposed to their legal positions; and aid them in developing and exploring various possible solutions and making informed decisions. Although the facilitative mediator may well have reached some preliminary evaluation of the dispute and use that evaluation in managing the process, a purely facilitative mediator will not readily inject those conclusions into the process.

An evaluative mediator, on the other hand, tends to evaluate the dispute more like a judge or arbitrator. Although the evaluative mediator, like all mediators, has no authority to impose a settlement on the parties, the evaluative mediator is not bashful about letting the parties and their attorneys know how he or she evaluates the dispute and will often push the parties toward the settlement the mediator thinks is appropriate, even encouraging the parties to defer to the judgment of the mediator.

Are you a facilitative or evaluative mediator?
Yes! Although there is a place for both pure evaluative and pure facilitative processes in certain types of disputes and to achieve certain kinds of objectives, the real magic of mediation arises out of the blending and implementation of techniques drawn from both philosophical orientations (and even from some more extreme orientations like directive or transformative mediation) by a skilled mediator. A mediator, when asked if he or she is evaluative or facilitative should to be able to simply answer “yes!”

What kinds of conflicts can be mediated?
Virtually any kind of conflict that is subject to resolution by trial or arbitration can be mediated. Although the incredible growth and acceptance of mediation has been due in large part to its usefulness as an alternative to litigation and arbitration, the promise of mediation is much broader. Mediation can be used for the prevention, control and management of emerging conflicts before they blossom into full-blown litigable or arbitrable disputes. For example, mediators are being used to facilitate the negotiation of private and public business transactions; manage internal governance conflicts in corporation, partnerships, associations and public bodies; resolve land use disputes between public and private interests and fashion acceptable public policy; to assist families with estate planning and the succession of business interests, among others.

Is it necessary that the mediator have substantive subject matter expertise?
No, as a general rule. The lay perception, shared by some attorneys, is that substantive expertise is important. Most practicing mediators would disagree. Mediators are primarily conflict managers, who bring a new way of thinking, a process, and skill in the management of that process to the table. The parties are often experts themselves; they have retained their own outside experts; and the last thing they generally need is another expert with preconceived notions and biases. If anything, too much substantive expertise by the mediator can get in the way of the kind of free “out of the box” thinking and creative problem solving that are the mediator’s stock in trade.

When should we mediate?
While there is no hard and fast rule, generally the earlier the better. With regard to the typical litigable dispute, there is a common assumption, particularly among trial attorneys, that it is necessary to substantially complete discovery, and maybe even file dispositive motions, before going to mediation. Experience indicates otherwise. Most litigable disputes, particularly those of a commercial or business nature, are, in the final analysis, really just business problems requiring a solution. Although the analysis based on legal research and fact discovery is critical to the litigation posture and positional bargaining, the dispute will probably be resolved based upon the underlying needs and interests of the parties. Generally, that can be done in the early stages of the conflict, before enormous financial and emotional capital are expended. Some mediators have observed little difference in the settlement rate between cases mediated at the earliest stages of the conflict and those mediated shortly before trial. There is potentially great benefit to the parties in mediating early and little downside. If it turns out that further fact discovery or legal research is necessary, the mediation can be recessed and resumed later. In fact, in those cases the early mediation often narrows and focuses the real issues and leads to earlier settlements.

Is the mediation really confidential?
Yes. Although Arizona has one of the strongest confidentiality statutes in the country, providing that the mediation process is confidential, and all communications, oral and written, made during, or created for or used in connection with, or acts occurring during, a mediation are confidential and may not be discovered or admitted into evidence, many mediators require all of the participants additionally agree to the confidentiality of the process and provide a confidentiality agreement to be signed by all participants.

How long does it take to mediate a dispute?
Although it is sometimes possible to complete a mediation in a half day, most mediations of commercial disputes between two parties, or even three parties, take a full day, but conclude by 5:00 or 6:00 p.m. Sometimes, however, if progress is being made, but resolution has not been reached by late afternoon, it is best to continue into the evening and not lose the momentum. Therefore it is good if the parties and their attorneys can arrange their schedules to be able to go as late as necessary to reach a resolution. If additional time is required, the parties can all agree on a mutually acceptable date to reconvene, and the mediator will often hold the next day available in case a second contiguous day would be helpful.
With large complex multi-party mediations, and most mediations in the public sector, it is often necessary to spread the process out over days, or even weeks and months. In those cases, the mediator will work with all of the parties and their attorneys to schedule joint sessions and separate caucuses in the most efficient way for all participants.

Do the parties need to provide anything to the mediator before the mediation?
The mediation hearing proceeds more smoothly if the parties each submit a pre-mediation memorandum. Usually each party submits its own pre-mediation memorandum, and the memoranda are not exchanged and are deemed by the mediator to be confidential in all respects. If the parties wish to exchange their memoranda, however, the mediator often will request a separate confidential supplement from each party, so that they each have the opportunity to provide the mediator any information they feel would be helpful that they do not wish share with the other side at that time. The memoranda need not be formal pleadings, and may even be in letter form. It is helpful, however, if all relevant contracts, documents, disclosure statements, dispositive motions, substantive court orders and other documents that would be helpful to the mediator are attached to the pre-mediation memoranda so that the mediator can be as fully familiar with the dispute as possible before the mediation actually begins.

Where does the mediation take place?
The mediation process is informal, and the mediation can take place anywhere that is convenient for the parties and the mediator. Often the mediation takes place at the office of the mediator, but sometimes at the offices of one of the parties or their attorneys. In large complex multi-party mediations, the parties will sometimes arrange for conference rooms in a public facility, like at a local hotel. Although the mediation format is extraordinarily flexible, the mediator customarily meet at times together with all parties and counsel, and at other times caucus separately with each party and their counsel. During caucusing it is best if there is a comfortable place where the other parties and their counsel can meet with each other. Accordingly, if the parties decide to arrange for the location themselves, they should be certain to arrange for both a joint meeting room and caucus rooms or other area for the other parties and counsel to meet.

Who should participate in the mediation?
While there is no arbitrary “right” formula for the conduct of mediation, experience has shown that the likelihood of a successful resolution is greatly increased when the parties themselves participate actively in the process. As a result, in addition to counsel, each party should have a representative present with full settlement authority, and the party representatives should be prepared for the likelihood that they will often speak on their own behalf and participate fully in the discussions. Although in-house counsel are always welcome, experience has also demonstrated that the process works best when each corporate or institutional party also has at least one representative from the business side present and participating instead of or in addition to in-house counsel.

How much does mediation cost?
Most two party, or even three party, mediations require approximately six hours of preparation time, which Sherman bills at $375.00 per hour. If the parties and their attorneys anticipate that the materials they will be providing will require more than six hours, they should advise Sherman as early as possible so that he can allow sufficient preparation time. Anticipating one day of mediation at $3,000.00 per day, and approximately eight hours of preparation time, at $375.00 per hour, the typical two or three party mediation will cost $6,000.00. Generally the parties split the cost equally.

How do I initiate a mediation?
Contact Sherman at 602-264-3330 or send him a message. Sherman or his assistant will contact you promptly to discuss the mediation, available dates, location, information for a conflict of interest check and contact information for all of the attorneys or unrepresented parties. Upon determining that no conflict of interest exists and after agreeing upon a date and any other necessary matters, Sherman will send a written engagement letter to all attorneys and unrepresented parties confirming his engagement and the date, time, location and general terms and conditions for the conduct of the mediation.

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