A Guide to Mediation for Parties
A Guide to Mediation for Parties
by
M. Ann Anderson
DRC Superior Court Certified Mediator
P.O. Box 93
Pilot Mountain, NC 27041
336-368-9621
annanderson681@hotmail.com
WWW.ANNANDERSONMEDIATOR.COM
I. INTRODUCTION
Mediation is becoming widely accepted in all types of civil matters and is an extremely helpful process when there is a dispute in the employment law setting. Mediation gives the parties an opportunity to explore creative options in resolving their disputes and also provides a forum for each side to express directly to each other their concerns about the employment relationship. This Guide comes about following my experiences as a mediator primarily mediating employment law disputes. Every mediation is different and the issues in your mediation may involve a somewhat different procedure.
As you will be learning, mediation is a process that gives the parties control over the outcome of their case by allowing them to engage in a structured negotiation. The mediator is a neutral who has been selected by the parties and is not a judge nor will the neutral mediator be deciding the outcome of the dispute. The parties to a mediation, in consultation with their attorneys, are the decision makers in any mediation. Through skill and experience, the mediator will guide the parties through their discussions with the goal being a negotiated settlement. This Guide is intended to aid the parties in their understanding of the process before arriving at the mediation.
II. The Procedure
Following the filing of a lawsuit, or when a dispute arises that the attorneys and parties believe is appropriate for mediation, the attorneys for the parties will usually select a mediator and notify the court of their selection. Almost all of the civil courts, except North Carolina District Courts, are ordering cases to mediation. If there has not been a lawsuit filed, then the parties will, through their attorneys, decide upon a mediator and contact a mediator to determine the mediator’s availability. Once the mediator is selected, the mediator will work with the attorneys to establish the date and location of mediation that is convenient for the parties, the attorneys and the mediator.
The mediation, as is customary in North Carolina, is commonly held in the office of one of the attorneys. Usually, the attorneys select the mediation location because of the size or location of the facilities. There is rarely a dispute in North Carolina over where to hold the mediation. If the parties would feel more comfortable in a neutral location, then the mediator can assist the parties in finding a more appropriate location.
Before the mediation, the attorneys may submit information to the mediator so that the mediator will have basic knowledge of the substance of the mediation. The mediator is not provided any information from the court about the claims except the names of the parties. If the parties would like to have the mediator review additional information, then that information must be submitted to the mediator. The complaint, which contains the factual statements and legal claims of the party filing the lawsuit, is one document that the mediator may find helpful. The mediator may also want to review the answer of the defendant, which will contain an outline of the employer’s position. Many times the parties will submit to the mediator confidential position statements for review before the mediation or the attorneys may talk to the mediator confidentially before the mediation. The parties are not required, however, to submit any information to the mediator and the mediator may actually know very little about the case before the session.
The parties are required to attend a court-ordered mediation. There may be times, however, when the attorneys may believe that the named parties’ presence may not be necessary or helpful for the mediation. If a party is not planning to attend the mediation, then the attorney must consult with the mediator and the opposing party so that the party may be excused. For a defendant company or entity, the person attending must be authorized to decide whether and on what terms to settle the action. If the defendant is a governmental entity, then the person attending must have the authority to negotiate and to make a recommendation. Rule 4, Rules Implementing Statewide Mediated Settlement Conferences in Superior Court Civil Actions. The rules vary somewhat in the federal courts in North Carolina, but in general, the persons to attend on behalf of the defendants, should be the main decision makers. See LR 83.10e(d), Rules of Practice and Procedure of the United States District Court for the Middle District of North Carolina.
Frequently, a party may want a friend, family member or business associate to attend the mediation even thought that person is not a named party. When a non-party will be attending a mediation, the attorney also should contact the mediator to ensure that the opposing side will not object to that person’s presence. The mediator may help the parties with these discussions if there is an objection.
Mediation procedures are flexible and mediations may be conducted in many different ways. Generally, however, when the mediation convenes, the parties, the mediator and the attorneys will meet together in one room, which is referred to as the opening session. The parties usually sit on opposite sides with the mediator sitting at the head of the table. The mediator will tell the parties about the process and then give each side an opportunity to speak. There are times when the parties and their attorneys, or the mediator may determine that opening statements by the attorneys or parties may not be helpful to the mediation process. In those situations, the parties may meet together to hear about mediation and then break into private sessions, or the parties may not meet together at all.
If the parties do meet together for the opening, and the parties want to make presentations to each other, generally the attorney for the employee will make the first statement. The attorney for the employer will then respond. The parties may speak during the opening, if they would like. The opening is the best time for the parties to hear from each other and the parties and attorneys are expected to listen to the other side’s presentation without interrupting. Rebuttal is appropriate if either of the parties would like to respond to statements that are made during the opening.
Attorneys handle mediation opening statements very differently. Some attorneys treat the opening as a jury argument. Others are very low key. Some attorneys will speak directly to the party, while others will address the mediator. Be prepared for either style and try to approach the opening session as an opportunity to learn about how the other side views your case. While you may find it difficult not to be defensive, listening offers you the opportunity to show the other side that you are participating in the mediation in an attempt to resolve your case.
After the opening session, the mediator will typically put the parties in separate rooms so that the mediator may have private discussions with the parties. The parties should make clear to the mediator what information they would like for the mediator to hold in confidence. The private session offers the parties, their attorneys and the mediator, the opportunity to have candid discussions about the strengths and weaknesses of the case. Having those candid discussions with the mediator is perhaps the most productive part of the mediation. It is during those discussions that the party will give the mediator a proposal about how the case can be resolved. Generally the employee will make the first proposal; however, the mediator may approach the employer first. After the initial proposal, the mediator will take proposals from one party to another, finding common ground, identifying the areas where the parties do not agree and working towards resolution. The mediator may find it appropriate to talk to the attorneys without their clients or may bring the parties and their attorneys back together for an additional session together. Keep in mind that the mediator is trying to conduct the mediation in the most effective way to assist the parties in their discussions.
The process may take some time, from an hour to many hours. If you would like to have a successful mediation, come prepared to spend as much time as it takes. The parties almost always exchange numerous proposals during the mediation so that an agreement is not usually reached quickly. I have had mediations conclude successfully in an hour; however, the majority of them take four hours or more, with the longest one-day session being seventeen hours!
If a mediation is successful, the parties will sign an outline of their agreement, called the mediated settlement agreement. The parties should read the written mediated settlement agreement carefully to ensure that it covers all of the areas of the parties agreement. Generally, one of the attorneys will prepare a longer settlement and release agreement that will be signed a few days following the mediation.
III. CONCLUSION
Come to the mediation with an open mind and with enough time allocated to the mediation, so that the parties may work through all of the issues that the case presents. The most important thing to bring to a mediation is patience. If you have any questions about the mediation process, do not hesitate to ask the mediator or your attorney.
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