Mediation / Arbitration

– Because there HAS to be a better way! –

While it might be possible to conceive of a situation where this could happen, the answer is almost always going to be “no.” Your mediator is very likely to have learned “secrets” or “strategies” during the mediation from one or both parties which is going to present the mediator with an ethical prohibition against representation of one against the other. There is such a thing, however, as “med-arb” where the parties try to mediate their dispute first, but in the event that the mediation fails, the matter goes straight to arbitration where an arbitrator will make a binding decision. If this is interesting to you, be sure to discuss it at the very beginning with us.

Legally and ethically speaking, no party is required to retain legal counsel for any proceeding before a mediator or arbitrator. Having said that, however, having legal counsel can be invaluable in assisting with “creative” settlement offers during a mediation and is to be greatly encouraged. There are several reasons, but one of the bigger reasons for this prohibition is that mediators – even if they are also lawyers – are not permitted to give legal advice while they are acting as “mediators.”

Other than the mediator, only the parties themselves need to be there. Attorneys, of course, are welcome and encouraged, but you do not need to have counsel to participate in mediation. In some limited instances, a representative of a company may appear if that representative has the full authority to settle and bind the party, but this must always be cleared ahead of time with the mediator and all other parties. In some other instances, non-parties may be present for some or all of the mediation, though this is generally discouraged and must be cleared with the mediator (and probably the other parties) as soon as possible before the mediation.

A mediation or arbitration can technically occur anywhere, but a “neutral” ground is usually recommended so that no party feels at a disadvantage.

For mediations, it is important to have a conference room sufficient to accommodate all the parties at one time for the initial part of the mediation, plus separate rooms for the parties to discuss things privately. (In other words, for a typical two party mediation, one conference room and one additional meeting room would be required.) These separate “caucus” rooms are where the parties typically spend most of their time. Family law mediations are often conducted in two separate rooms for the entire mediation, depending upon a number of factors unique to some family law situations.

For arbitrations, on the other hand, the large conference room is the only real “need.”

We, of course, have the necessary conference and meeting rooms available, plus plenty of free, covered parking, and restaurant downstairs, and several eating establishments next door (Starbucks, Dunkin’ Donuts, Subway, Chipotle, Thai Bayshore to name a few).

Still, sometimes it makes sense to conduct the mediation or arbitration at another location all depending upon the parties’ perceived needs and the availability of necessary space.

If the parties reach a resolution in mediation, that resolution will be reduced to a writing signed by all the parties at the close of the mediation. This writing is a contract and is as binding and enforceable as any other written agreement. There is no “appeal” per se, though conceivably a party could seek to declare the contract unenforceable if there are severe enough circumstances (e.g., physical duress). We have never had that happen and courts generally look very skeptically at anyone trying to get out of a mediated settlement for a number of important reasons.

As a general rule, what is said in mediation, stays in mediation. Confidentiality is a very important part of what makes a mediation work, so the legislature and the courts are very concerned to keep it confidential. Mediators generally encourage open and frank discussions and disclosures and the parties generally do not have to worry about hearing things like this later in court: “But he admitted in mediation that he . . . .” or “But she already offered me more than that in mediation . . . !”

Having said that, there are some very limited exceptions where confidentiality is not preserved such as disclosure of child abuse, plans to commit violent crimes, etc. (If you have any specific concerns about confidentiality, be sure to raise the topic with your counsel ahead of time.)

While there are various kinds of mediations and arbitrations, some “general” differences and similarities apply. We must say “general” because of the wide discretion given to the parties themselves to set up the parameters of any given mediation or arbitration. For this reason, it is critical for each party to understand (preferably through his own legal counsel) the particular rights and obligations for his particular situation.

We made this “Differences Between” Chart to highlight the general difference — but again, do not rely on this chart as any form of “legal advice” from us because every case is different!