Litigation may start in the court room, but it doesn't have to finish there.  Many Parties find settling in a mediator's office to be less expensive and more comfortable.


Starting Out:

    Unless the dispute involves acts of violence or abuse, the mediation will usually begin with the mediator and all of the participants meeting together. During this opening session, the mediator discusses the rules of mediation and asks each party to sign a mediation agreement. Once this has been done, each attorney and client has an opportunity to make statements regarding the dispute. The nature of the statements will depend upon the approach to resolution that the parties choose to take.

Here Is How It Works:

    Positional bargaining is just what it says it is. Parties take positions, which may or may not be based on facts and then they operate from that point of view.

For example:

Positional Approach:

    When positional bargaining is employed, mediation generally does not occur until after the parties’ lawyers have completed “discovery.” Discovery consists of depositions, written questions and requests for the production of documents and tangible objects related to the dispute. Generally, discovery takes several months to complete and can take longer. After lawyers gather what they consider enough information from the parties and witnesses, the persons who filed the lawsuits make demands on the defendants and the defendants make offers to settle. The positional mediation process consists of a series of offers and demands that will hopefully result in settlement. Once the opening session is completed, the parties separate into different rooms, and the mediator shuttles between the parties delivering offers and demands while attempting to reason with each party regarding the merits of that party’s case, the laws that support each party’s claim, and the likelihood of each party prevailing at court.

See Interest Based Mediation




    A customer enters a carpenter’s shop admires a desk and tells the owner that he will pay $1,000 for it. The owner says he cannot take less than $2,500. At that point bargaining begins. Often purchases are made without the buyer knowing the true value of the item. The carpenter may “puff up” his work with claims of years of experience and the superior quality of his materials. An uneducated buyer may not know the difference. In the alternative, sellers may not know the true value of what they are selling, and accept an offer from an expert buyer that is far less than the actual worth of the object. Some people in adversarial dispute resolution are more educated regarding their dispute than the ignorant buyer and seller in this example; however, the formalities of adversarial dispute resolution processes often limit the amount of accurate information available, and there is no duty by another party to correct false assumptions.




(Referees for Adversaries)


Rules of Mediation: Parties sign a mediation agreement and receive written rules prior to beginning mediation. The most important rule states that the mediation process is confidential and nothing that occurs during mediation shall be repeated without the consent of all parties. If the case should not settle in mediation, the confidentiality rule prevents one of the parties from going to court and repeating an offer or a comment that another party said or describing the behavior of the other parties during the mediation.

Mediation takes place before a law suit is filed or during pending litigation to give parties an opportunity to settle their disputes and avoid having to go to trial. Over the last 25 years mediation has evolved into a number of different models, but regardless of the model used, mediations are always conducted by trained neutrals known as a mediators, and mediations are attended by the parties to the dispute or their agents. Some models of mediation have only the parties present; however, most mediations are attended by the parties and their attorneys.

Positional Mediation: When people have a dispute and they do not use interest based negotiation, the parties will assume “positions” and stand firm. Often the courts will order the parties to go to mediation and attempt to settle prior to trial. Positional mediations may also be voluntary and not court ordered. When parties assume a position and make demands and offers, it is known as positional bargaining, and an adversarial style of mediation is used to attempt to settle the dispute.