What is mediation? Mediation is the negotiation of a dispute by parties exploring resolution facilitated by a mediator or a neutral. Settlement via mediation is cheaper in every sense: time, cost and emotional capital. Mediation offers the parties a great deal of control over the venue, process, timing, expense and final outcome. It is easier to schedule, more user friendly and improves the likelihood of fewer bitter feelings or regrets afterwards than the court process.
What is the alternative to mediation? Trial in court by jury or judge alone is the traditional dispute resolution method. Litigation’s often “scorched earth” approach is not quick and painless. It is cumbersome, time consuming and expensive. It is mentally, emotionally and financially draining. If spending enormous amounts of money, time and emotional capital is a goal, litigation is the way to go. If prevailing in a court while the costs of doing so approximate or exceed the amount in dispute is a goal, litigation is the way to go. Most trial lawyers recognize that not every case requires exhaustive or elaborate discovery, such as depositions; that not every case requires private investigators, experts, summary judgment procedures and motion after motion; that not every case can afford the delay and uncertainty of outcome. Some cases do, some do not; but all serious disputes need to be resolved. Sooner, rather than later!
What is a mediator? A mediator is a trained, experienced and skilled neutral vested in seeing your dispute resolved by you. A mediator’s methodology ranges from facilitative (gentle persuasion) to evaluative (judgmental) ends of the spectrum. A skilled mediator does not impose the mediator’s views, particularly at the outset but does facilitate the parties’ examination of their own case, their own exposure, risk and likely outcome absent a settlement. A skilled mediator guides the parties towards consensus, letting the parties achieve settlement, reserving more evaluative comments for the end of a stymied mediation. See Mediation Fees
What is a a C2C ADR mediator’s goal? A mediator’s goal is to help disputing parties arrive at an agreement themselves. Not a resolution imposed on them! A good mediator listens, asks questions, often questions you need to think about, explores what your REAL goals are and what REALISTIC possible outcomes are for you and your opponents.
When is the best time to mediate a dispute? Today! No time like the present to end a dispute! Cases in court never get easier, cheaper or better! mediation is successful pre-suit, during discovery, after discovery, short of trial or at any other time during the pendency of a claim, even on appeal. This option should be discussed in full with your lawyer before decisions are made about discovery and motion practice. Your case resolution decision tree should have mediation at the top. It should have C2C ADR at the top too.
How long does it take to mediate a case? You are just weeks away from case closure after their first phone call to C2C ADR . A typical case is scheduled at the parties’ convenience, normally within thirty days of the request to mediate and usually settled on that mediation day. C2C ADR neutrals do not give up; they follow those few cases that fail to settle to continue exploring the best avenue with all parties to close the case by settlement. And most of those settle shortly after the mediation day.
Why does mediation work so well? Lawyers know that alternative dispute resolution is the most effective path to settlement to facilitate prompt and fair resolution. It empowers both sides to look realistically at their dispute. It puts everyone in a room focused only on resolving that one dispute sharing that goal. Mediation takes everyone involved away form their homes and offices where so many other things intrude to sharpen the attention paid to this case. A skilled mediator knows what questions to ask and when!
Will waiting for court bring me justice? The short answer is the one that all judges and lawyers know: NO! Courts are there to provide rough fairness but resolving the dispute is the REAL goal of the court system. Parties at a mediation settle their case; but within the court system, the typical reality is that juries are all involved in some form of settlement or mediation within the jury. Lawyers know that on a 12 person jury, there are two outliers who are extreme in their views at each end of the spectrum, two want the plaintiff to win and two do not. Or they differ on amounts of recovery. It is the eight in the middle who negotiate with each other , giving and taking on liability and damages and the other questions the court charges them with answering. So either YOU mediate your resolution or a JURY does!
What is Arbitration? Arbitration is at the other end of the spectrum from mediation. Once the parties agree to arbitrate a matter, they have left the decision making in the hands of a third party, an arbitrator in a multi-arbitrator panel or three arbitrators. An arbitrator acts as a judge and jury, making findings of fact and rulings of law, and reading a decision. See Arbitration Fees
What is C2C ADR’s Quick Track? C2C’s E3 track is for cases with a loss or damage claim up to $50,000. It saves more money and more time than traditional mediation followed by an arbitration. E3 Track combines
- A focused morning mediation which, if unsuccessful in settling the case, is then followed by an afternoon arbitration that same day with the same neutral.
- The parties agree before the mediation to switch the mediation to a binding arbitration if the case does not settle.
- The agreement authorizes and permits the same neutral then sitting in the afternoon as an arbitrator to rely on all that was said (argument) and presented (evidence) at the mediation as evidence or argument in the arbitration without needing to be re-submitted. Such material is taken during the mediation in effect as de bene evidence and the arbitrator may accept it as truthful, partially truthful, false, accurate or inaccurate, or as reliable or unreliable, as if submitted only at the arbitration. The arbitrator can accept it for that degree of persuasiveness that the neutral believes it to be entitled.
This C2C Expedited Consumer Case track permits the parties to settle the case incurring only the half day cost of a mediator. And it permits the parties alternatively to then promptly resolve the case by arbitration while everyone is focused and ready without having to engage a second neutral and adjourn to another time and place. It is cheaper and quicker. It is perfect for an amount in controversy under $35,000 but C2C will do this type of dispute resolution in any type of case by agreement.
It opens real dispute resolution to the parties in a smaller case. It is more practical. It permits the parties the freedom to settle or have a decision without breaking the bank. It also puts the “monkey on the backs of all parties” of a potential and imminent arbitration to take place immediately at the end of a failed mediation. The impetus to settle is self-imposed by this E3 dispute resolution track and the likelihood of settlement and certainly of resolution is substantially increased. This is the perfect method for resolving disputes between
- Consumers and businesses
- Landlords and tenants
- Distributors and business customers
- HOAs and owners
- Auto bodily injury cases and Accident cases
What is Neutral Evaluation? A neutral evaluation, like mediation, is non-binding but, in a sense, is a bit like arbitration if both parties agree to do it. Both parties submit materials simply by a representation of what each witness would say to the arbitrator and can actually submit testimony by deposition, affidavit or in person if credibility is thought to be an issue, and the neutral is then asked to evaluate the realistically likely outcomes. The parties and the evaluator can structure the process to their liking. The parties can request a suggested settlement figure, a range of numbers from least likely to most likely found, no commentary on liability or damages, or some commentary on liability and damages, as the parties choose.
What is a Mock Jury Trial? A mock jury can be conducted with six to twelve jurors to represent a typical jury panel with a one day, soup to nuts, presentation of each side’s case, followed by an hour or so of deliberation, a vote and a Q&A with the jurors and neutral who acts as a judge. This is a solid way for a plaintiff and defendant to test their case, see what holes might exist, what strengths exist and what the realistic outcome ranges are.
Who are the C2C ADR neutrals? C2C ADR neutrals are all certified and experienced as trial lawyers and neutrals in these substantive fields and in their CVs. They have sat waiting for jury verdicts and know what each case presents to the parties in the real world of case management and settlement. Every neutral should have sat waiting for juries to return verdicts in their cases many times before offering help in settlement to others. Our mediators and arbitrators have done that work repeatedly. They are acknowledged by their peers and judges with the highest Martindale Hubbell ratings and by their peers and the community as Super Lawyers. Their goals are simple: prompt and fair resolution of your disputes.
Email bobflynn@CoasttoCoastADR.com or call 619-786-7680 or 781-239-1005. Ask for Bob Flynn to discuss neutrals, scheduling and case resolution. C2C ADR can help you resolve your dispute by alternative means of dispute resolution and bring it to closure within weeks of your call.