There are several professional bodies for mediators in the United States. Mediation developed in response to labor unrest in the early twentieth century and social unrest mid-century.
Courts began using it in the 1970s to manage crowded dockets. They offered mediation as an alternative to the courts that allowed party self-determination, creative solutions, and quicker response.
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The parties to a lawsuit meet with a neutral third-party in an effort to settle the case. The third-party is called a mediator.
It is this person’s job to listen to the evidence, help the litigants come to understand each other’s viewpoint regarding the controversy, and then facilitate the negotiation of a voluntary resolution to the case.
For instance, taking a personal injury case all the way to trial can easily cost $100,000 or more.
On the other hand, the parties can pay a mediator a couple of hundred dollars an hour, with a very real chance that the case will be resolved by the end of the day.
The American Arbitration Association,
the Federal Mediation and Conciliation Service,
the Nation Mediation Board, the Civil Mediation Council,
the Chartered Institute of Arbitrators,
the US Institute of Peace, the United Nations Department of Political Affairs, and the Judicial Arbitration and Mediation Services.
States have created their own recommendations and qualifications for candidates pursuing a career in mediation.
Additionally, a mediator can practice in private settings in any state without being licensed, certified, or listed.
What’s the purpose of mediation?
The purpose of mediation is to avoid the time and expense of further litigation by settling a lawsuit early on in the process. Unlike other forms of ADR, mediation is not binding on the parties.
What is the success rate of mediation?
a) Mediation resolves most tort type problems 85% of the time. It resolves TRO and similar issues about 98% of the time.
b) within limits, the quality of the mediator is not a significant factor in whether or not mediation works. Statistically, almost all mediators show about the same success rate.
What are the three basic principles of mediation?
Confidentiality as a principle has three components that are reflected in relations between a party and a mediator, a mediator and a judge (in charge of the matter), and in relation to the public, or social control.
Is mediation a good sign?
In dissolution actions or even before the action is filed, mediation may be helpful in deescalating the conflict, keeping costs down, preventing even more emotions to heat up, and speeding the process along.
Similarly, many times business disputes are like a divorce, but in a business context.
Does a mediator decide the outcome?
The non-binding nature of mediation means also that a decision cannot be imposed on the parties.
In order for any settlement to be concluded, the parties must voluntarily agree to accept it. Unlike a judge or an arbitrator, therefore, the mediator is not a decision-maker.
Appropriate Cases for Mediation
People facing the prospect of litigation often wonder if their case is appropriate for mediation.
Nearly any type of case can be mediated, but the best cases are those in which the parties are unlikely to reach a settlement agreement on their own.
After all, if the parties and their attorneys are capable of reaching a settlement, there is no reason to pay a mediator to get involved.
However, when settlement is at least a remote possibility, mediation can bring the parties together and get the deal done. Common types of lawsuits that end up in mediation include breach of contract disputes, injury and tort cases, wrongful termination claims, family law matters, and more.
Choosing the Right Mediator
The best mediator for a particular case will be a law-trained professional who is familiar with the subject matter of the case.
Most often, parties should seek out a current or retired attorney with experience litigating similar disputes.
It is important to realize, though, that the best attorneys do not always make the best mediators.
Successful trial lawyers are known for being aggressive, while successful mediators are known for their ability to help other lawyers calm down and reach a consensus.
This distinction is important. For help locating a qualified mediator, contact the local state bar association for a referral.
What to Expect During Mediation
Mediation itself is a rather informal proceeding. First, the parties and their attorneys will meet together with the mediator, usually in a conference room at the mediator’s office.
The attorneys for each side will make a short opening presentation, after which the mediator usually splits up the two sides into separate offices or meeting rooms. At this point, the mediator will visit with each side individually.
The mediator will offer his or her thoughts on the case, and the parties can respond by sharing information with the mediator in confidence, or with instructions to pass certain information on to the other side.
Moving back and forth between the two rooms, the mediator will convey the parties’ settlement offers and hopefully facilitate a compromise.
How common is commercial mediation compared with litigation?
Owing to the confidential nature of mediation, there is a small sample size of reports comparing commercial mediation to litigation.
Nevertheless, commercial mediation has grown due to an increase in state and federal laws that promote mediation through regulations.
There has also been an increase in the use of mandatory mediation clauses in private contracts.
Courts have encouraged mediation to decrease their dockets.
And because mediation is cost-effective, more efficient, and it allows parties to develop unique resolutions to their dispute.
Accordingly, states such as Florida require most parties to mediate their disputes before a court will allow them to be put on their docket.
What immunities or potential liabilities does a mediator have? Is professional liability insurance available or required?
There is no regulatory body for mediation nor is there a uniform regulatory scheme in the United States governing the practice of mediation.
Mediators are not state-licensed and there is no formal certification process.
Although mediators may be trained and certified by any number of educational or court-annexed bodies.
And there is no legal restriction on using the title ‘mediator’ as there is protecting the title of doctor and lawyer.
Must mediators disclose possible conflicts of interest? What would be considered a conflict of interest? What are the consequences of failure to disclose a conflict?
Mediators are often required to abide by the Model Standards of Conduct for Mediators.
On the other hand, the Standards require mediators to decline a mediation opportunity if they cannot conduct it in an impartial manner.
Similarly, mediators are also obligated to disclose both actual and potential conflicts of interest.
That is to say, the ones that are reasonably known to the mediator and could raise a question about the mediator’s impartiality.
Our mediators’ fees regulated, or are they negotiable? What is the usual range of fees?
Mediation is usually charged by the hour. The cost of mediation fluctuates around the country.
But the rates are minute in comparison to the costs associated with litigation.
Rates typically reflect the mediator’s background, training, education, and experience.
Are mediation proceedings strictly private and confidential?
In the United States, mediation proceedings are meant to be strictly private and confidential.
Confidentiality is the cornerstone of mediation because it enables parties to discuss openly the elements of their case without consequence.
annexed of mediation proceedings has been assured by the operation of law and by agreement.
Specifically, most states have statutes mandating the confidentiality of mediation proceedings. Some states’ statutes are more expansive than others.
Mediator certification can also be obtained online through programs such as the National Association of Certified Mediators.
Consequently, a person may pursue a career in mediation with a high school diploma and successfully completing a mediation course.