ADR (Mediation)
ADR (Mediation)
Legal Services
Mediation and arbitration are two common forms of alternative dispute resolution that can help parties reach a mutually beneficial agreement. It is important to weigh the pros and cons of each option and consult with a qualified professional before proceeding with any dispute resolution process.
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ADR / Mediation
At competitive rates, we offer excellent and quality alternative dispute resolution (ADR), mediation, and litigation support services. Disputes of all kinds, including civil, administrative, corporate and criminal law, are regularly resolved by our services.
There is no doubt that mediation services are an ideal alternative to litigation in many cases. As mediators, we will ensure that you are able to resolve your dispute and reach a resolution that is fair, practical, and workable for you. Our experienced mediators can meet with you on the same day if you have an urgent matter that needs to be resolved right away.
Alternative dispute resolution services (ADR) are a great way to resolve disputes quickly and efficiently. ADR is often used to settle small claims disputes and claims for which the amount in controversy does not exceed $500,000. In addition to small claims, ADR can also help with contract disputes, landlord-tenant issues, and many other types of civil cases.
ADR may be used before filing a lawsuit, after filing a lawsuit if the case settles before trial, or even after a judgment has been entered by a court. In addition to resolving cases without going to court, ADR also allows parties involved in litigation to avoid the costs associated with litigation.
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Alternative Dispute Resolution / Mediation
Here are answers to some common questions about discrimination in contracts.
Mediation Defined
The mediation process is non-binding. It means that parties are not obligated to continue mediation after the first meeting, but are free to do so after they have agreed to submit a dispute to mediation. The parties always remain in control of a mediation session in this sense. The continuation of the process depends on their continued acceptance.
A mediation decision cannot be imposed on the parties due to its non-binding nature. Settlements must be agreed upon voluntarily by the parties in order to be successful. Mediators are not decision-makers like judges or arbitrators. Assisting the parties to reach a settlement is the mediator's role.
In order for parties to reach their own decisions, mediators assist them in two main ways. Mediation is practiced in two different ways around the world. A facilitator assists the parties in communicating under the facilitative mediation model. Their job involves helping each side understand the other's position, interests, and perspective. Evaluative mediation is the second type of mediation, in which the mediator provides a non-binding assessment of the dispute that can be accepted or rejected by the parties. Parties can choose either of these two mediation models. Cordaie Paralegal Services will help you identify a mediator who fits your chosen model.
Mediation is a confidential process. Confidentiality encourages parties to be frank and open in the mediation process by ensuring that any admissions, proposals, or offers of the settlement won't have any repercussions beyond the mediation process. They cannot, in general, be used in subsequent court proceedings or arbitrations. Cordaie Paralegal Service's Mediation Rules contain detailed provisions directed at preserving confidentiality in relation to the existence and outcome of mediation.
Mediation vs. Arbitration: What's the Difference?
The primary difference between mediation and arbitration is that in mediation, the parties retain responsibility and control over the dispute. Their decision-making power is not transferred to the mediator. Essentially, this means two things:
(1).
During the arbitration, the outcome is determined by an objective standard, the applicable law. The parties' will determines the outcome in mediation. Hence, the parties have the option of considering a broad range of factors in determining the outcome, such as their respective business interests. Mediation, on the other hand, is a procedure that is based on interests, while arbitration is a procedure based on rights. It also means that the parties can make decisions based on their future relationship. Rather than relying solely on their past conduct, this results in a different outcome.
It is the party's job to convince the arbitration court of the validity of its claim in arbitration. There is no need to address the other side with its arguments but rather to the tribunal. During mediation, since the outcome must be accepted by both parties and is not decided by the mediator, each party must convince, or negotiate, with the other party. Despite the mediator's role as a channel of communication between two sides, it is addressed to the other side.
(2).
Mediation is an informal procedure due to these differences. It is possible to combine mediation with arbitration. Under the Cordaie Paralegal Services Mediation Rules, such a dispute is referred to mediation. It is recommended that the parties provide for a 60 or 90-day settlement period if a settlement cannot be reached within that time, or if a party refuses to participate or continues to participate in mediation, the dispute is referred for a binding decision by arbitration (or by expedited arbitration if the parties agree).
By combining the mediation and arbitration procedures, both parties are encouraged to commit to the mediation process in good faith, since if a settlement cannot be reached, the costs and management commitments that would have to be incurred in a subsequent arbitration process will be much more tangibly measurable.
In Mediation, Rules Play an Important Role
The mediation process is relatively informal and unstructured, with each party agreeing to continue participating in the process and accepting any outcome. Mediation rules are therefore more limited than binding arbitration rules. What does that function do? A mediation agreement between the parties includes the Cordaie Paralegal Services Mediation Rules as part of that agreement.
These rules serve the following purposes:
- Establish that the procedure is non-binding
- Define the mediator's appointment
- They set out how mediators' fees will be determined
- The parties are guided as to how mediation can begin and how the process can be established (Articles 3 to 6 and 13)
- Ensure that the process is confidential and that any disclosures made during it are protected
- It specifies the parties' responsibilities for the procedure costs
Types of Disputes That Mediation is Appropriate & the Advantages
It is not always appropriate to use mediation to resolve disputes. In cases of deliberate, bad-faith counterfeiting and piracy, mediation is unlikely to be appropriate because it requires both sides to cooperate. Similarly, when a party is certain that it has a clear-cut case, or when the parties or one of them wishes to obtain a neutral opinion on a question of genuine difference, to establish a precedent or to be vindicated publicly on an issue in dispute, mediation may not be the appropriate process.
Conversely, mediation can be a good alternative if one or both of the following are critical priorities:
- Keeping dispute settlement costs to a minimum
- Containment of dispute-settlement processes
- Settlement as soon as possible
- Confidentiality in dispute resolution
- A dispute that preserves or develops a business relationship between the parties
The last-mentioned priority, in particular, makes mediation especially suitable when the dispute occurs between parties to a continuing contractual relationship, such as a license, distribution agreement or joint research and development (R&D) contract. In light of the above, mediation allows parties to find a solution by referring to business interests in addition to strictly legal obligations and rights.
How it Works: The Principal Stages in Our Mediation Services
Mediation involves few formalities. The procedure outlined should, however, be understood as guidance only, since the parties may always decide to modify the procedure and proceed in a different way.
1. Getting to the Table: The Agreement to Mediate
Mediating a dispute begins with an agreement between the parties to do so. Generally, such an agreement can be found in a contract that governs a business relationship between the parties. If there is a dispute under this contract, the parties agree to submit it to mediation; or, they may draw up a special mediation agreement after the dispute occurs.
Both situations are addressed in the last section of this Guide. There are specifics in these clauses that provide for mediation alone or mediation followed by arbitration if no settlement is reached through mediation.
2. Starting the Mediation
Upon agreement between the parties to submit a dispute to mediation, one party sends a Request for Mediation to the Center. Details concerning the dispute should be provided in this request. An agreement to mediate and a brief description of the dispute are included as well as the names and telephone numbers of the parties and their representatives. This information is not intended to limit the arguments and issues the requesting party may raise. In order to set up the mediation process, the Center will need to have sufficient details from the parties so that it can proceed. As a result, the Center will need to know who the parties are and what the dispute is in order to assist them in selecting the most appropriate mediator.
3. Appointment of the Mediator
If the parties have already decided who the mediator will be, the Center will contact them (or their representatives) following the receipt of the Request for Mediation. It is crucial, therefore, that both parties are in complete agreement with the appointment of the mediator before the mediator is appointed. To suggest the names of suitable mediators to the parties, the Center typically discusses the matters outlined in "Selecting the Mediator.". As a result of these discussions, the Center will usually suggest several names of potential mediators to the parties (by phone or in person), along with their biographical details. There can be further names proposed until the parties agree on an appointed mediator.
A discussion of the physical arrangements for the mediation will also begin at this stage with the parties: the location (usually specified in the agreement to mediate), the meeting room, and any other support facilities needed.
At the time of the mediation appointment, the Center will also determine, in consultation with the mediator and the parties, the mediator's fees.
4. Mediator's Initial Contact With the Parties
Following the mediation appointment, the mediator usually conducts a series of telephone conversations with the parties. In the initial contact, a schedule will be set for the subsequent process. Before the first meeting, the mediator will specify what documentation the parties should provide, if any, and set a timetable for supplying that documentation and holding the meeting.
5. The First Meeting Between the Mediator and the Parties
Mediation begins when the mediator establishes with the parties the ground rules for the process.
A mediator will, in particular:
- Establish with the parties whether all meetings between the mediator and the parties will take place with both parties present, or whether the mediator may, at different times, meet with each party separately (caucuses);
- Make sure the parties understand the confidentiality rules outlined in the WIPO Mediation Rules.
- As part of the first meeting, the mediator will also discuss with the parties any additional documentation that the parties might need to provide as well as the need for expert assistance, if these matters have not already been addressed in the initial contact between the parties and the mediator.
6. Subsequent Meetings
Mediation may consist of meetings held only on one day, over several days or over a longer period of time, depending on the issues involved in the dispute and their complexity as well as the economic importance of the dispute and the distance between the parties' respective positions in relation to the dispute.
Typically, the following steps are involved in subsequent meetings between the mediator and the parties:
- Gathering information about the dispute and identifying the issues at stake;
- In order to understand the parties' respective interests and the reasons for their positions, it is necessary to understand their respective interests;
- Option development that satisfies the interests of both parties;
- Considering the parties' respective interests and determining each party's alternatives to settlement in accordance with one of the options; and
- The conclusion of a settlement and its recording in a contract.
Settlements do not necessarily result from all mediations. A settlement should, however, be reached when both parties consider that the options for settlement are superior to any alternative options for settlement via litigation, arbitration, or other means.
The mediation process will include various stages of private consultations between the parties and their advisors and experts to discuss various aspects or evaluate options. Such private consultations are given during mediation.
Selecting a Mediator
When deciding who should be appointed as a mediator, the parties should consider the following:
- What do they want the mediator to play; do they want the mediator to provide a neutral evaluation of their dispute, or do they want the mediator to act as a facilitator of their negotiations by helping them identify the issues, explore their respective underlying interests, and develop possible settlement options?
- Do they want a mediator who is skilled and experienced in the topic of their dispute, or do they want one who is specifically trained to mediate? Mediators may serve as evaluators or facilitators based on their preferences.
- Is a single mediator preferred or multiple mediators? It may be beneficial to have both a subject matter and process specialist as mediators in disputes with the highly technical subject matter. The parties may want to consider two co-mediators if their cultural and linguistic backgrounds are very different.
- What nationality should the mediator be (or what nationalities should he/she not be)?
- Neither of the parties to the dispute has business or financial relationships with the candidates.
- What are the differences between the candidates in terms of their educational backgrounds, experience, training, and specializations?
Mediator Styles
While all mediators work to help parties resolve conflict, mediators use a variety of styles and approaches to do this. Much like doctors and counsellors will use different strategies to achieve desired results, so too do mediators use different techniques. The three main styles of mediation are evaluative, facilitative, and transformative.
Evaluative Mediation:
A mediator who uses an evaluative approach will likely be appreciated for their no-nonsense style. Evaluative mediators work quickly and efficiently to get to the point and write up a solution. They are more likely to weigh in on options and make recommendations based on their experience. Evaluative mediators are especially useful when time is short and the problem is relatively concrete when it seems likely that the case may otherwise end up in court, or when the parties want recommendations from a neutral party.
Transformative Mediation
A mediator with a transformative approach is likely to be appreciated for the time and space that he/she creates for all sides to really hear and understand one another. Transformative mediators may create more space for emotions to be expressed through the process and to help support emotional healing along with the solution. Transformative mediators are especially useful when conflicts are tied to more deeply personal issues including identities and relationships and when parties are seeking empowerment and recognition.
Facilitative Mediation
In between these two ends of the mediation style spectrum are facilitative mediators. This is the style of mediation that may be most familiar to people. Facilitative mediators are appreciated for the ways they adapt based on the parties’ dynamic needs. They may use techniques from both evaluative and transformative approaches. Using a facilitative style, a mediator asks questions, normalizes perspectives, and validates both parties’ points of view.
Frequently Asked Questions
Here are answers to some common questions.
Alternative Dispute Resolution
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