Mediation

Mediation or a mediation conference is a part of the legal process.  When two or more parties have a dispute, such as the subject of a lawsuit or a claim, they may be required to "mediate." 

•  "Mediation" means a process whereby a neutral third person called a mediator acts to encourage and facilitate the resolution of a dispute between two or more parties. It is an informal and non-adversarial process with the objective of helping the disputing parties reach a mutually acceptable and voluntary agreement. In mediation, decision-making authority rests with the parties. The role of the mediator includes, but is not limited to, assisting the parties in identifying issues, fostering joint problem solving, and exploring settlement alternatives.

• "Mediator" means a neutral, impartial third person who facilitates the mediation process. The mediator's role is to reduce obstacles to communication, assist in identifying issues, explore alternatives, and otherwise facilitate voluntary agreements to resolve disputes, without prescribing what the resolution must be.

• In an attempt to resolve the dispute, the parties on each s​ide agree (or may be ordered by the Court) to hire a professional mediator to help resolve the dispute.  The mediator is a third-party, who does not have any personal interest in the case.  He or she may bring a fresh perspective to the case after negotiation attempts have failed and may assist the parties to resolve their differences.

• The mediation process may result in a full settlement of the matter, a partial settlement of the matter, or no settlement.  However, even if a settlement is not reached, the process often helps the parties to better understand what issues are really in dispute.  Frequently and especially in civil matters, the central issue may just be the amount of the damages. 

• Most often, the mediation begins with all the parties meeting in a group caucus.  Each side may explain directly to the other side how they view the case and specific issues involved in the case.  It is an opportunity for each side to be heard by the opposing party.  After the group caucus, the parties separate, and the mediator meets with each side individually.  The mediator then moves between the sides, attempting to resolve the dispute.

• Mediation is confidential and privileged.  There are very few and limited exceptions to the confidentiality of mediation.  This is to ensure that the parties are able to openly discuss the matter in order to increase the likelihood of a final resolution.​

• The Mediator has no authority to order the parties to resolve the case.  The parties have sole-decision making power; however, most successful mediations resolve the matter with each side making some concession. 

• Mediation may take as much or as little time as the parties require or feel is necessary.  Although generally, Circuit Civil Mediations are scheduled for three to four hour time periods, they may last a few minutes to a few days or even weeks. 

“Arbitration” means a process whereby a neutral third person or panel, called an arbitrator or arbitration panel, considers the facts and arguments presented by the parties and renders a decision which may be binding or nonbinding. 

• Non-Binding Arbitration: A court may refer any contested civil action filed in a circuit or county court to nonbinding arbitration.   An arbitrator or, in the case of a panel, the chief arbitrator, shall have such power to administer oaths or affirmations and to conduct the proceedings as the rules of court shall provide. The hearing shall be conducted informally. Presentation of testimony and evidence shall be kept to a minimum, and matters shall be presented to the arbitrators primarily through the statements and arguments of counsel. The arbitration decision shall be presented to the parties in writing.  An arbitration decision shall be final if a request for a trial de novo is not filed within the time provided by rules promulgated by the Supreme Court. In other words, the parties are not bound by the arbitration decision and may proceed to a trial before the court if an objection is timely made. 

• Binding Arbitration: Two or more opposing parties who are involved in a civil dispute may agree in writing to submit the controversy to voluntary binding arbitration, or voluntary trial resolution, in lieu of litigation of the issues involved, prior to or after a lawsuit has been filed, provided no constitutional issue is involved. In other words, if the parties agree to a binding arbitration, they will be bound to follow and governed by the decision of the arbitrator(s).