Tuesday, April 13, 2010

The Gwinnett Mediation Process - Behind Closed Doors.

Tonight's entry is brought to us by Senior Associate, Stephanie Steele.


Earlier this month, I wrote about the steps leading up to mediation. Today, let’s take a look inside the mediation room...

Once both parties and their attorneys sit down with the mediator, the first order of business is to go over the guidelines for mediation. Some of the guidelines are:

a. Information shared during mediation is confidential and privileged to foster open and honest communication and negotiation.

b. Your mediator will not disclose any information learned during the mediation without the express permission of the parties. Confidential information you share in a private meeting (caucus) with your attorney and the mediator will not be divulged to the other party or attorney without your consent.

c. The exception to this rule is that mediator is obligated to report crimes that occur during mediation, imminent threats of bodily injury or abuse to a child or a party and any such other matters the law requires the mediator to report.

d. You cannot call the mediator as a witness in your case, if the case goes to trial. You cannot subpoena any written materials developed for or in the course of mediation.

e. The mediator’s role is to assist the parties in reaching an agreement, not to give legal advice. Your attorney is there to provide legal advice.

f. In order for the mediation process to be successful, all parties need to participate in good faith and work toward resolution of the issues.

g. Payment of the mediator is due at the close of the mediation session. Prior to mediation, your attorney should inform you of the mediator’s hourly rate. Usually, the parties evenly divide the mediator’s fees. However, alternative arrangements may be made in certain circumstances.

Usually, after the mediator and parties review the guidelines for mediation, each attorney will give an opening statement outlining the issues in the case. The attorneys may make an opening settlement offer. Alternatively, the mediator may meet with only one side and then with only the other side to get an understanding of what the issues are and what each side is willing to offer in settlement.

Mediators typically relay offers of compromise to the other party in the case, offer ideas regarding possible counteroffers, and assist you and your attorney in analyzing the settlement offers and counteroffers. When the mediator or one of the parties believes there is nothing further to be gained by the process, the mediation will be ended. The time spent in mediation varies, but generally lasts from two to five hours.

At the conclusion of mediation, the mediator has both parties sign a document stating the mediation ended in an impasse (no agreement), there was a partial agreement or there was a full agreement reached.

Sometimes we reach a full agreement, sometimes a partial agreement and sometimes we need the Court to decide the issues. If an agreement is reached at mediation, the mediator will often hand write the main areas of agreement. One of the attorneys will then draft a formal agreement for both parties to sign.

You should expect the formal Settlement Agreement to include more than just what was agreed to at mediation. There are a number of standard legal provisions in common use by attorneys that will be included in the formal Agreement, even though not specifically addressed at mediation.

If there is a provision you don’t understand, ask you attorney to explain it. The Agreement binds you and you should fully understand its impact on you and your case.

Mediation is an informal process that very often results in full resolution of cases. You should think of it as a great opportunity to resolve your case without further court intervention, higher attorney fees and more energy and time invested. Even if you don’t reach an agreement, you and your attorney will gain valuable insight into the goals, strategy and evidence of the other side. This will enable you and your attorney to better prepare for the final hearing.

I have often heard judges say that the parties know their case best. An agreement you reach with the opposing party will be more tailored to your specific situation and will be more satisfying to all parties involved than any Order the court could devise.

Hopefully, demystifying the process will help you focus on working through the issues to reach a mutual agreement tailored to fit you.

Stephanie Steele

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