How to Begin the Mediation Process
Mediation is far more efficient than litigation, and it may be more effective than arbitration in certain circumstances. The process involves a neutral third party who facilitates discussion between two clashing parties, so the results are more likely to favor both sides of the dispute. While the process is typically less formal than other forms of ADR, it does require some advance preparation.
Before going into detail on the preparation process, it’s important to first address factors that may deter one or both parties from seeking mediation. Some may not believe that the process will actually be helpful since mediation is typically nonbinding. Others may feel that requesting mediation (as opposed to pressing charges) will weaken their position in the dispute.
Neither of these is true. The act of seeking mediation is not a sign of weakness; rather, it indicates a desire to resolve a problem in an efficient manner. And while the results are typically nonbinding, the fact that they would likely favor both parties is usually sufficient to resolve the issue.
To begin the process, one must first request that mediation begin. This is typically done by sending the other party a letter. The other party may refuse, in which case other methods would be necessary.
If a mediation clause was written into a contract with the other party, then refusal will be far less likely.
Establish and Understand the Rules
Once both parties have agreed to mediation, rules will need to be established. Specifically, you’ll need to agree on the following items in advance:
- How the mediator will be selected
- How costs will be handled
- Matters of confidentiality (such as what items the mediator may disclose during the hearing)
Once you’ve determined the rules, you’ll need to draft an agreement to make sure you both comply. While the terms may be flexible owing to the nonbinding nature of mediation, it’s still necessary to handle the process efficiently.
Select a Mediator
Once you’ve drafted your mediation agreement, it’s time to select a mediator. You may select one individual jointly or each send your own representative to act on a neutral panel. Those two may select a third individual to ensure neutrality.
From there, preparations for the hearing begin. You’ll need to talk to the mediator and discuss your position with them in advance. In addition, you’ll need to plan the following:
- Make sure those with decision-making authority are present
- Assess your position as objectively as you can
- Put together a strategy for negotiation
While the process is less adversarial than litigation (or even arbitration), you still need to be able to present your position clearly with all necessary evidence. This will make it more likely that your interests are taken into account as you discuss a solution with the other party.
Often, each party will have legal counsel present as well. This can improve negotiations and help the whole process go more smoothly. Hart David Carson LLP, for instance, provides mediation services to clients in Illinois, so if you’re looking to begin this process, contact us today.