All About Mediation
Mediation works wonderfully when the parties are reasonable, unemotional, and trustworthy.
But how often have you been in conflict with someone who was reasonable, unemotional, and trustworthy? And, when you were – you probably didn’t need a third party to help you resolve the matter.
Successful mediation doesn’t require that the parties trust one another, or even that the other side is going to start out reasonable. Even complicated and difficult disputes can be resolved if the parties are given the opportunity and the right circumstances. Most conflicts can be settled given an established procedure, a trained mediator to keep everyone within bounds, and participants committed to the attempt.
Participants don’t need to worry about their negotiation skills either – the trained mediator and mediation process will guide and protect the participants. But even the experienced negotiator benefits from the presence of a neutral third party in the process.
Below are some of the most commonly-asked questions about Mediation and our responses. Feel free to email or call for more information.
PA RESOLVE Mediation Services
Frequently Asked Questions
1. What is mediation?
Mediation is a form of Dispute Resolution (“ADR”) offered by PA RESOLVE Mediation Services as an alternative to traditional litigation. Mediation is an informal means of resolving a conflict with the active, direct participation of the parties, and the assistance of a trained neutral mediator. The mediator has no authority to impose a settlement on the parties.
2. What are the benefits of mediation?
Because the mediator helps the parties come up with their own ideas for resolving their problems, the parties are able to control the outcome of the dispute resolution.
The parties can establish better relationships through the improved communication and constructive problem solving that is part of the mediation process. Unlike litigation or arbitration, where valuable relationships are usually destroyed, Mediation can help preserve and even restore those relationships.
Mediation saves time, money and judicial resources. Because the parties have crafted a solution that is acceptable to them, there is also a higher degree of compliance achieved through mediation.
3. What types of issues are mediated?
Certified Mediators are trained in skills and techniques valuable to resolve all manner of conflicts and to help settle any type of dispute. Business disputes, contract issues, partnership disputes, manufacturing claims, consumer claims, employee and workplace conflicts; Personal disputes, between neighbors, family members, and the like; Disputes between strangers, property damage and personal injury, defamation, libel -- these matters are all conflicts which may be resolved through mediation.
Mediation is especially appropriate where there are recurring disputes, a need for an ongoing relationship between the disputants, to resolve communication breakdowns, workplace disputes, controversies involving procedures or interpretations, employment claims, partnership and business conflicts, and those cases where there may be a need for privacy and confidentiality that is not available in a public forum. If you have a question about whether a matter is appropriate for mediation, contact PA RESOLVE.
PA RESOLVE’s Mediator, Tom Ford, has over three decades of business law and litigation experience, as well as direct experience in the management and ownership of businesses. While his long familiarity with issues impacting businesses helps him most readily understand conflicts involving shareholders, business owners, contracts, employment issues, non-competition, and all manner of commercial and business disputes, as a trained mediator, Tom can help parties resolve virtually any nature of dispute.
4. Who is the mediator?
New Jersey native and long-time Pennsylvania resident and health care professional Maureen Cosgrove founded PA RESOLVE to provide dispute resolution services in Northeast Pennsylvania, North New Jersey, and New York's Southern Tier. Our principle mediator, Pennsylvania attorney Tom Ford, has 30 years experience as a business lawyer and litigator, and is a trained mediator.
He was initially certified as a mediator in 1980 and undergoes continuing advanced and additional training – most recently having successfully been certified through a week long American Arbitration Association Mediation Skills training course in December, 2013. Tom has also been certified by the United States District Court and is appointed by Federal Trial Courts to resolve difficult litigations through mediation.
5. Is a mediation agreement binding?
The parties can create a signed mediation settlement agreement as a contract that is intended to be legally binding.
PA RESOLVE typically prepares a Mediation Settlement Agreement or Memorandum of Settlement when the conflict resolves and the dispute settles. Sometimes, the counsel for the parties will need to engage in additional discussion and prepare additional documentation to effect the settlement and dispose of the litigation. But the Agreement reached in mediation is respected by the Court system as a binding undertaking and is enforceable in accordance with applicable law.
6. Is the mediation process confidential?
All parties will be asked to sign an Agreement to Mediate prior to initiating a mediation session. The agreement states that the participants and the mediator agree to keep the session confidential, and that the participants agree not to compel the mediator’s disclosure of mediation communications or documents.
In addition, under state law, all mediation documents and communications are privileged (except for narrow exceptions). Confidentiality extends to all communications during the mediation process, unless otherwise provided for by law.
The applicable law treats private mediation as a settlement discussion and therefor generally precludes one side from trying to introduce into evidence something that came out of the mediation process. In addition, you Mediation is PRIVATE -- only the parties and their counsel may attend (unless there is agreement of the Mediator and the parties otherwise).
7. Can I mediate a case if there is a violation of state or federal law?
A violation of law may be resolved through mediation. An attorney should weigh the pluses and minuses of the alternatives – mediation, complaint, hearing – and decide which is the best option.
8. Who can request mediation?
Mediation is available at the request of any party. It is customary that the parties jointly agree to seek out a mediator. However, PA RESOLVE can contact the other party on behalf of the requesting party to seek agreement to mediate the conflict or dispute.
Contact PA RESOLVE at 570-762-2163 or firstname.lastname@example.org
9. How much does mediation cost?
PA RESOLVE charges each party to the mediation $90 per hour for mediation, consultations, travel time, and preparation.
In addition, unusual expenses are charged to the parties equally, and are generally discussed in advance.
There is a minimum fee of four hours, due in advance of the mediation.
10. Who will provide and pay for meeting facilities?
PA RESOLVE offices in Mount Pocono, Pennsylvania are available for mediations without additional charge. However, if the offices are not appropriate given the mediation requirements, or if the parties mutually wish to incur the cost of another meeting facility, it will be up to the parties to share the meeting room costs. At a minimum, mediation facilities require at least two separate and private meeting areas for two party mediations, although three meeting areas is preferred. Additional rooms would be needed if there were more parties.
11. Who will provide and pay for amenities (for example, refreshments) at prolonged mediations?
PA RESOLVE provides basic refreshments at no additional costs. The parties will share the costs for meals and other amenities.
12. How does a party begin the mediation process?
Contact PA RESOLVE at 570-762-2163 or email@example.com.
13. What happens next?
The mediator will then be in contact with the parties to schedule the mediation. Typically the mediator will consult with the parties, and their counsel, prior to mediation to obtain background information about the conflict and the nature of the dispute. Often the parties will be requested to make a written submission to the mediator. Depending on the mediator’s assessment of the matter, the submission may be private, may be shared with the other party, or may be partially private and partially shared. The parties will be told in advance whether anything is to be shared with the other party.
14. What will happen during a mediation?
The mediator will contact the parties, or counsel if counsel for the parties have initiated the request for mediation, and explain the process and answer any questions. Counsel will be asked to explain the situation and identify all participants. Participants may also be contacted by the mediator. If everyone agrees to participate in mediation, a time and place will be set. During the mediation, the mediator will ask questions to clarify each participant’s needs and issues. Each issue will be separately addressed for possible solutions. If everyone is satisfied with the proposed resolution, it will be incorporated into a written agreement that the parties will prepare for all to sign.
Separate meeting space will be available at all times during the mediation for private, confidential meetings and discussions with the mediator. The mediator or either party may ask for time to caucus privately during the mediation session.
15. What is counsel’s role during the mediation?
The role of counsel shifts from that of an adversarial representative to that of a consultant, advisor, or coach. Counsel may need to advise the parties as to whether the alternative resolution being explored by the parties is legally acceptable, or help the parties to frame alternative resolutions in ways that are legally appropriate.
Counsel are not necessary for mediation -- unrepresented parties are welcome to request and participate in mediation -- however they are often helpful in guiding the parties and answering questions about issues or resolutions under discussion. The mediator does not advise parties.
16. What is an effective pre-mediation strategy for participants?
Counsel and participants should try to look at the dispute from the other party’s point of view. This will help them determine if there are factors driving the other party’s position that might be capable of resolution in a different way. Focus on how the other party views the case and the assumptions, evidence and legal analysis that support that view. Also consider the motivation of the other party and the factors that are likely to change or influence that view. Counsel and participants should consider what will happen if settlement is not reached. If there are benefits to settlement, counsel should encourage the parties to be open-minded and to explore solutions that might alleviate the other party’s concerns.
17. What is a mediator’s role in mediation?
A mediator’s role is to facilitate communication and restate issues and needs in a clear and non-confrontational manner. The mediator may meet with the parties privately to discuss information the party does not wish to share with the other side. If necessary, the mediator can help to provide a “reality check” regarding unrealistic expectations of a participant, in a private setting. A mediator has a duty of impartiality. Mediators do not judge evidence or decide a case. Mediators do not decide the terms of any resulting agreement, but may assist the parties in drafting issues.
18. What information will be collected by PA RESOLVE?
PA RESOLVE will maintain only summary information on a mediation. That summary will document only the parties involved in the mediation; their attorneys, if any; the date, time and place of mediation; the hours involved in the mediation services; and whether the mediation resulted in a resolution. All notes, submissions, and memoranda, if any, will be destroyed upon the consummation of the resolution or the termination of an unsuccessful mediation.
19. What is expected of the parties at a mediation?
The parties are expected to come to the mediation with an open mind and willingness to listen to the other party. The parties should be respectful of one another and of the mediator and should think creatively about possible solutions to their dispute. The parties should act in good faith at all times.
20. What if one party decides the mediation process is not working and wants to terminate the process?
At any time during the mediation either party has the option to terminate the mediation and pursue a resolution in another forum such as an administrative tribunal or in the courts.
21. What if the mediation fails to result in a mutually satisfactory agreement?
Over 85% of mediations are successful. However, nothing is lost if mediation does not resolve the dispute. Issues may have narrowed between the parties. Lines of communication may have opened. Parties may have had the opportunity to see the dispute from the other side’s perspective. Both parties still have at their disposal access to more traditional means of dispute resolution, including the courts. Many times settlement occurs after the mediation sessions end as a result of the efforts expended in the mediation process.
22. When can mediations occur?
Mediations can help resolve conflicts and settle disputes at any time – prior to litigation, during litigation and before trial, after trial while an appeal is pending – at any point mediation can be helpful to the parties. The parties will benefit most from a successful mediation the earlier in the process it occurs – saving the time and expense of litigation.
23. Is your Mediation Style Facilitative, Evaluative, Restorative, or Directive?
We believe it is an error to insist on a single style of Mediation -- your conflict is unique and will not always require the same style of Mediation as another dispute, even if there are similar facts. Indeed, during the course of a single Mediation, the mediator often finds it beneficial to employ differing styles depending on the nature of the discussion, the evolution of issues, and the shifting degree of emotions or engagement of participants.
"Litigation is destructive. It destroys relationships, it steals irreplacable time and resources from your business and your life, and it is tremendously stressful.
Mediation replaces all that with a process that can restore or preserve relationships, that usually reaches resolution in a single day, in a civil, productive discussion. THAT'S MEDIATION. There really is no comparison -- that's why I do what I do." --Tom Ford, Certified Mediator