FAQs for Parties to a Mediation

Q.  What is mediation and what are some of the benefits of mediation?

Mediation is an informal process in which parties work with a neutral individual to explore options for resolving their problem.  Although parties are frequently ordered to mediation after a lawsuit has been filed, mediation can also be used to help resolve any dispute, regardless of whether or not the matter is involved in litigation.   The mediator is not a judge, and plays no role in deciding the outcome of the case.  Mediation is a process for the parties to work out their own dispute.

There are many benefits of mediation.  The process is informal and private.  Any resolution of the problem is voluntary and the parties, not the court, control their outcomes.  No witnesses are involved and the parties work towards their own solution to the problem.  Parties are not limited to outcomes that the court system provides and instead may be creative towards meeting their own interests and needs.  Mediation offers a substantially less expensive and faster means to accomplishing resolution than alternative methods of resolving the dispute.

As a mediator and an attorney who has advised clients and handled cases in state and federal courts, I understand not only the court process, but also the effect of the dispute upon the parties.  I work with the parties and their attorneys to reach that solution in the most appropriate way, given the problem.  I am sensitive to the value of the parties’ time, but I will also stick with the process, as long as it takes, unless and until it appears that the matter will not resolve.

Q.  What are the goals of mediation?

The goals of mediation are whatever the parties in the mediation decide they want to accomplish.  Many times the goal will be settling the dispute.  Other times, the parties may simply be trying to understand the position of the other side.   In some cases, the parties are unsure about their goals until they participate in the process.  Whatever the case, I  will work with the parties to determine their goals and then to help them meet those goals through the mediation process.

Q.  What are the advantages and disadvantages of mediating a dispute?

Mediation has the primary benefit of giving the parties control over the solution of their problem rather than having someone else, such as a judge or a jury, make the decision for them.  In the informal mediation setting, parties can tell each other what they would like to tell each other without being constrained by court procedures and evidentiary rules.

The parties also have more control over their timeline for mediating.  Cases can be mediated before a lawsuit is filed or early in the litigation, in order to keep costs at a minimum.  If the parties believe they need more information before mediation, then they can participate in more of the litigation discovery process before mediation is held. 

Mediation may not be the most appropriate avenue for resolving every dispute.  In mediation, a third party does not decide upon a winner and loser, which in some cases may be needed and/or desired.  Some disputes involve public policy issues that the parties cannot themselves resolve at mediation.  If a party believes that all information relating to the matter must be public, then mediation may not be for them.

Q.  What types of disputes can be mediated with me?

I mediate a variety of cases.  I believe every problem, regardless of how small or how large, is equally important to the parties.  I have mediated cases ranging from class actions to what position an employee returning to leave was entitled.  My background as a lawyer is in the employment and civil rights field, so a majority of the cases I mediate are employment matters.

I have mediated many types of cases, including:

• medical malpractice
• negligence
• partnership dissolutions
• malicious prosecution
• alienation of affections
• workers’ compensation
• employment discrimination
• wage and hour disputes
• employee benefits cases
• contract disputes
• covenants not to compete
• wrongful death.

Q.  What are the differences between mediation, arbitration and litigation?

While mediation is a process in which the parties control the outcome of their case, arbitration and litigation both involve procedures in which the parties turn over the decision making about the case to someone else.  An arbitrator is, in effect, a private judge, agreed upon and hired by the parties to decide their case.  Some arbitrations utilize more than one arbitrator.  While less formal, there are still many more rules that apply to the process;  arbitration, for instance, involves the presentation of evidence.  Arbitration can be expensive. 

Litigation is the most formal of the three and involves filing formal legal documents that are public record.  Legal motions may be filed with a judge determining what aspects of a case may get to a jury.  Litigation is usually the most time consuming and expensive of the three processes.  

Q.  What does it cost to mediate with you and how do the fees work?

Mediation fees and costs are shared equally by the parties unless there is another agreement before or at the mediation.  I charge an hourly rate plus an administrative fee.  I charge mileage, if I travel to another location for the mediation.  My hourly rates are $230 per hour; with each side splitting the fee, the parties will each pay $115 per hour.  My administrative fee is $200; with each side splitting the fee the parties will each pay $100.  My mileage rate is $.46 per mile with each party paying $.23 per mile.  I do not charge for travel time to the location of the mediation.

Please see my complete scheduling information or contact Shannon Branch directly at 1-336-374-0702.

Q.  How long can I expect the mediation to last?

Mediations vary greatly in length depending upon the complexities involved.  A workers’ compensation mediation usually lasts around two to three hours.  An employment mediation may last six hours or more.  The mediations I conduct are generally completed within a day.  If the mediation needs to take longer than one day, we can reschedule for a second mediation date.  Try to make arrangements so that you can stay as long as needed and so that you do not feel rushed in your decision making.

If the goal of the mediation is to resolve your dispute, I will be committed to seeing the process through regardless of the time of day or the number of sessions that it takes to reach an agreement.  I will be sensitive to not wasting your time, but my experience has shown that the possibility of resolving the dispute increases as long as the parties are talking to each other about working out their differences.  I will be there to help you for as long as it takes.

Q.  Where are the mediations held…e.g., where will my mediation take place?

In North Carolina, it is customary to hold the mediation in the offices of one of the attorneys for the parties.  Factors in determining where the mediation will be held include: the location of everyone involved (such as the parties, the attorneys, corporate representatives and adjusters); the size of the offices; whether someone will be flying to the mediation;  and the availability of telephone conferencing.  The mediation also may take place in a courthouse or in the office of the mediator.  Shannon, my scheduler, will work with you to coordinate the location of your session during the convening process.  Regardless of where the mediation is held, we will work to make sure that everyone is comfortable so that we can all focus on resolution.

Q.  Do I need to bring my attorney with me to the mediation?

If you are represented by an attorney, the attorney should be consulted and generally will be accompanying you to the mediation.  Some mediations are conducted with the parties without their attorneys, but in most cases that I mediate the parties are represented at the mediation by their attorney.

Q.  The other side is bigger and has more resources.  How will the mediation process work for me?

In mediation, the parties have control over what happens to them.  No one can force you to reach an agreement; in fact, the process is designed to give you control over reaching that agreement.  Mediation allows the parties to talk to the mediator in complete confidence about any fears and concerns that they have. 

At the beginning of the mediation, the mediator generally will meet with the parties (and their attorneys) together to explain the mediation process and to hear about the case.  In most cases, the mediator will then meet alone with each side.  At that time, when you are meeting alone with the mediator,  you can raise, confidentially, any concerns you have about the other side and explore with the mediator how to address those issues.

Q.   Are there any rules to be concerned about when I attend a mediation?

One of the advantages of mediation is that it is an informal process without many rules.  You are not required to make an offer, nor should you expect that one will be made.  If your case is a court-ordered mediation, there are some rules about who is required to attend.  Otherwise, the only requirement is that you attend until the mediator dismisses you.  

Q.   How do I schedule a mediation with you?

To schedule a mediation, you can call 1-336-374-0702 or email my assistant Shannon Branch at sbranch@semediation.com.  Once you give Shannon the names of the parties and attorneys, she will take it from there to arrange the date, time and the location.  You can also call my office at 1-336-368-9621.

Q.  How can I best prepare for the mediation?  In other words, what can I do before the mediation to help ensure that it is effective for me?

In order to prepare for a mediation, consult with your attorney about possible outcomes  for your case.  The parties should be aware of both the best and worst possible outcomes for their dispute.  If the case involves a claim for money damages, know what those damages are.  In some instances there may be statutory limits on what a plaintiff can recover and both parties should be aware if there are such limits.  If a case involves a person seeking reinstatement to employment, both sides should be aware of whether or not such a claim is realistic.  

Q.  What can I expect to happen during the mediation session?

I generally have an opening session with all parties and their attorneys present.  During that time I discuss the mediation process and how the mediation will proceed.  The opening session is an opportunity for the attorneys and the parties to tell me about their case.  It is also an opportunity for the parties to speak directly to each other.  That session can be as long or as short as needed. 

After the opening, I usually will meet alone with the person or party who is bringing the claim (and his or her attorney) in a separate room.  I then will meet alone with the person or party (and the attorney) against whom the claim is brought.  I will then go between the rooms to help the parties determine whether or not they can find common ground to resolve their problem.  You may meet alone with your attorney without me at any time-just let me know.  Usually, I shuttle between the rooms many times, before the parties reach an agreement.  In fact parties will often tell me I need roller skates!

Q.  Who should attend the mediation?

As a general rule, the parties and their counsel should attend a mediation.  However, as a practical matter, anyone who will be making a decision about if or how the dispute should be resolved should attend the mediation.  When the case is court-order to mediation, there are rules governing who must attend a mediation.  You may want to consut with your attorney if there is someone you would like to bring who is not party to the process.  The mediator may also need to be consulted if a non-party to the mediation will be attending.

Q.  Will I leave the mediation with a written settlement agreement?

If the parties reach an agreement, the agreement will be put in writing.  Generally, the parties will sign a mediated settlement agreement that will contain all of the material terms discussed and agreed upon by the parties.  Each side will participate in making sure that the document reflects the agreement at the mediation.  After the mediation, usually a day or more, the parties may execute a longer document setting out in greater detail the terms of their agreement.

Q.  If we don’t settle the dispute, what other options do I have?

If the matter does not settle at the mediation, the parties may proceed with their claims and defenses in the appropriate forum.  The parties can always continue to discuss settlement, with or without the mediator’s assistance.  I like to follow up in those cases in which the parties do not reach an agreement, to see if I can be of further assistance.  If the parties cannot reach an agreement at mediation, they can also talk about other methods, such as arbitration, for resolving their dispute.

Q.  What happens if we settle the dispute at mediation, but either I or the opposing party have “buyers’ remorse” and want(s) to back out of the agreement?

If the parties reach an agreement and the parties sign a mediated settlement agreement that comports with the legal requirements for settlement, then the agreement is binding, except in very limited circumstances.  When reviewing the mediated settlement agreement, the parties should make sure that the mediated settlement agreement contains all of the terms that they want.  The parties should assume that any document that is signed at mediation is a binding legal contract.

Q.  What other special concerns should I have before/during/after the mediation and what else would you like for me to know?

I am a very strong believer in the mediation process.  I believe that the parties have the ability and the power to work out their own agreement. I encourage you to relax and not to be nervous about the mediation process.  Mediation can help you put an end to your dispute in a very informal setting.