When Does Mediation Occur in the Litigation Context?

Image  A recent article from Nevada Business addresses the nuts and bolts of a typical mediation when litigation or a law suit is involved with hard facts and some well played levity.  

In the article, the author suggests that: “Mediation occurs after negotiation has reached an impasse.”   In other words, the author is suggesting that the parties’ efforts to work out the issues on their own has ground to a halt.  This chronology is often true, but not always with respect to when mediation might occur during a litigated dispute.

Attorneys often continue negotiations on a settlement or resolution right up to the minute that the mediation appointment starts and may continue to negotiation through and after the mediation concludes.  Simply put, mediation is a flexible process that can help do many things, such as:

  • Close a deal,
  • Accelerate the negotiations,
  • Identify pitfalls or information gaps that need to be addressed before more productive negotiations can occur (e.g., obtain the video, the valuation, the statement, the record, etc.),
  • Create a temporary agreement or a partial agreement, and more.

In all, parties simply do not have to wait for negotiations to end in a stalemate before participating in mediation when litigation is involved (and courts often order mediation irrespective of where negotiations or settlement discussions are).  

Contact One Mediation’s offices in Atlanta, Georgia for more information about mediation, mediation coaching, and local mediators at contact@onemediation.com or call 404-720-0599.

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Should You Defer to the Other Side’s Proposed Selection of a Mediator?

A quick “Google” on the topic of “how to select a mediator” will provide a bajillion articles…a good sample article here

Academics in the study of conflict communications and management might argue that the mediator need not understand the subject matter of the dispute (e.g., divorce, intellectual property, etc.), but can resolve any dispute by helping the parties focus on what the problem is and potential solutions.  There is truth in this stance.

Poll attorneys and many (if not most) will say that they want the mediator to know “the law” of the particular dispute.  If it is a divorce, the attorneys do not want a criminal defense attorney to serve as the mediator.  If it is a securities fraud matter, the attorneys do not want a family therapist to mediate the matter.  There is truth in this stance.

Once parties decide that they will mediate their dispute, too often they get bogged down in selecting who will mediate.  In getting knee deep in this “new dispute” of who will be the mediator, the battle of wills often is not about whether the mediator knows the subject matter or has the ability to manage conflict communications.  So, what is the right answer in this I want Mediator X; you want Mediator Y?

A heavily seasoned attorney for a global corporation spoke to the Dispute Resolution Section of the Atlanta Bar and said, off-handedly, that he didn’t really care (beyond the basics) who the mediator was and usually deferred to the other side’s desired mediator.  Why?  Two of the reasons he gave showed that he was a confident negotiator who really understood how mediation worked.

The first reason for deferring to the other side’s choice of mediators was that he could use any (any) mediator to do what needed to be done.  As a mediator, I think this statement is brilliant.  If a mediator is truly a neutral party and you are truly prepared to negotiate, you can and will use the mediator to help work with your client, to share messages with the other side, and to retrieve information from the other side, as needed.  Simply put, effectively using a mediator meant that he understood just how flexible the mediation process is and how creatively he could use the mediator (when you plan ahead or have significant experience negotiating) to get the settlement done.  Deal closed!

The second reason for deferring to the other side’s choice of mediators was that, since he knew how to use any mediator, he gained (or, perhaps, didn’t lose) a psychological advantage, if you will.  He noted that if the other side “didn’t get their way” on who the mediator was, the other party may arrive at mediation more emotionally charged than they otherwise would have been because they suffered a “loss,” even before the mediation session started.  The other party may also believe that the mediator is or will be more biased towards the other side, an opinion that may provoke the other side to be more aggressive, emotionally reactive, and ready to give up on negotiations more quickly because the odds were stacked against them from the outset.  

The bottom line is that in selecting a mediator, a factor that is often not discussed is the value of “giving in” to the other side on who the mediator will be.  So long as the mediator is worth his or her salt, deferring to the selection of the other side may be a strategic move towards setting the mediation up for success rather than failure.

 

 

Mediation Costs: Fees and “Flat Rates” and “Per Diem Caps,” Oh My!

On a recent call, a potential customer asked about costs of mediation.  It is a question that comes up all of the time.  I began to feel a bit like a cell-phone sales person, though.

Like most mediation firms, One Mediation’s mediators have different hourly rates that reflect their experience.  On the other hand, One Mediation also has mediators who offer a “per diem” cap on their mediation fees which is somewhat unusual.  Another mediator associated with One Mediation also offers a “flat rate” for her mediation services based upon the value of the dispute. 

All these “pricing programs” can be like sorting through the cell phone plans with unlimited minutes, additional lines, etc.   Don’t panic!

The short story of mediation expenses is pretty simple – there is “Traditional” billing and “Alternate” billing.  Traditional billing involves the parties paying their portion of the mediator’s hourly fee for the time the mediator spends providing them services.  In other words, if the mediation takes three hours and the mediator’s hourly fee is $200, the total bill for all parties will be $600.00 which is evenly split between the parties. 

Sometimes the mediator’s fee is split up differently because the parties have agreed to a different formula.  Additionally, in many settings, one party may agree to pay the entire mediation fee as part of the resolution.  A starting point, however, for mediation costs is to plan on splitting the fees evenly across the parties.

Alternate billing involves things such as “flat rates” and “per diem” caps.  A “flat rate” is a set fee that is paid to a mediator for any and all services rendered in facilitating the mediation of a particular dispute.  A “flat rate” has no correlation to the mediator’s time spent on the dispute.  As such, the parties could mediate for one hour or ten hours, and the rate will be the same.  Generally, flat rate billing is fairly rare.

Another alternate billing format involves “per diem” caps.  In this scenario, a mediator may offer his or her services on an hourly basis up to a certain amount per day.  After that point, any mediation services will not be billed at the hourly rate.  For example, if a mediator’s hourly rate is $200 and his per diem cap is $1,000.00, then a mediation that lasts over five hours will not increase the cost of services provided on that day.  Some mediators are willing to provide such caps, and parties should inquire about them.

File for Divorce or Mediate Before You Separate?

No one teaches you how to break up.  In love and war, emotions play high.  Often, a race to the courthouse to file for divorce can occur.  But, there is another way to break up that may not only be in the best interests of “the wallet,” but also in the best interests of any minor children involved.

Parties can file divorce on their own (or pro se), but more often than not, at least one spouse will retain an attorney.  The attorney’s retainer is rarely less than $5,000.00.  Not every couple has a spare $10,000.00 to spend on two attorneys – and the retainer is likely just the beginning. 

Sure, you’ve seen billboards that announce that attorneys will represent you for a few hundred dollars if the divorce is “uncontested.”  The second there is any dispute – holidays with the kids, the amount of child support, who gets the debt – it’s a contested divorce.  Simply put, it is the rarest of occasions that a couple’s divorce is uncontested, at least for the billboard attorney.

But, one way to set up an uncontested divorce is to mediate before (or during) separation – or at least before a petition for divorce is filed.  For about $1,000.00, a mediator can assist the couple with working out the details of their split – the debt, the assets, the children, the retirement, the house and furnishings, etc.  When couples have already gotten most, if not all, of these issues worked out on their own, they are well positioned to avoid a big legal battle that simply drains the pot of money that they are fighting over (okay, or usually are fighting over). 

Check out www.mediateB4Useparate.com for more information on mediation in the context of separation.  There is at least one other way to break-up, other than making a mad dash for the courthouse to file for divorce:  it’s Mediation.

New Panelist Barbara Ellenberg joins One Mediation

Barbara EllenbergMs. Ellenberg has practiced law in the State of Georgia since 1989 and also serves as a mediator and arbitrator of disputes. She graduated from Emory University and earned her law degree from Georgia State University. Ms. Ellenberg personal background has served her well in providing legal counsel to
business clients and for mediating business disputes as she, in addition to practicing law, owns a successful wholesale business which was co-owned for a long period with her ex-husband. This experience with a family business resonates in her corporate and domestic/divorce mediations.

In conjunction with Ms. Ellenberg’s corporate law experience, she has a specialization with intellectual property and trademarking issues. Her understanding of this special legal field has served business disputants well in an age where technological advances create new and unique business disputes that are time sensitive and cannot wait for trial. As such, she has been an effective deal-maker in these kinds of business disputes.

Ms. Ellenberg is available to mediate on weekdays and weekends. Click on the Schedule button above to review her availability for mediation services.

New Panelist Cynthia LeMay joins One Mediation

Cynthia LeMayMs. LeMay’s professional career in negotiation makes her uniquely positioned to arbitrate and mediate. In addition to negotiating union contracts, Ms. LeMay has brokered multi-million dollar deals for businesses and individuals. Her financial background serves parties well when a business dispute or family matter is being worked out. In today’s economic climate, her knowledge of business, tax, and related legal matters has proven invaluable to parties who seek to work out their own resolution in lieu of prolonged litigation.

With her successes in corporate negotiations, Ms. LeMay has been called upon to mediate high-income couple’s divorces. She has assisted parties with unraveling their highly entangled finances and business ventures, and enjoys assisting any divorcing parties with the equally important issues of
co-parenting. Ms. LeMay specializes in QDRO’s (Qualified Domestic Relations Orders), which involve division of benefits such as retirement. This expertise resonates with parties whose longer-term marriages have dissolved.

Ms. LeMay also has extensive experience with employee benefits and Human Resources issues, such as EEOC Charges of Discrimination, Employee Recruitment and EAP programs. She not only holds Series 7 and 63 NASD licenses, but also holds a certification as a Senior Professional in Human Resource Management (SPHR). Ms. LeMay has been a registered mediator with the State of Georgia since 1993.

Ms. LeMay is available to mediate on weekdays and weekends. Click on the Schedule button above to review her availability for mediation services.

The Value of ADR – Alternative Dispute Resolution

One MediationThe value of alternative dispute resolution is in the opportunity. Resolving a legal dispute outside of courts has many benefits, such as exercising some control over the outcome. Additionally, ADR also provides the parties the opportunity to control when the matter resolves, which may occur faster than waiting for a trial or a ruling on apppeal. One Mediation neutrals can assist you with maximizing these opportunities.

One Mediation neutrals are qualified professionals whose rates are reasonable. After neutrals confirm that they have no conflict with respect to the parties in a mediation, the scheduling the session is confirmed and can be done online. One Mediation provides online payment options for unrepresented parties. Additionally, One Mediation neutrals are available for certain matters on Saturdays. Meet our neutrals by clicking here.

Mediation vs Arbitration

Mediation and Arbitration are generally contractually agreed upon substitutes for resolving disputes as opposed to resorting to a court to resolve it. The purpose and goals of Mediation and Arbitration, however, are quite different and often misunderstood.

The purpose of Mediation is to have the parties sit down with a neutral third party who tries to facilitate a monetary or other settlement to the dispute. Neither party has a legal obligation to settle the dispute, and any statements made during a Mediation are not admissible evidence in the event no settlement is reached. Mediation can be a highly efficient, cost effective tool. It can conclude quickly or it can take several hours as the mediator conducts multiple rounds of shuttle diplomacy between the parties. My personal experience is that after many hours the parties feel personally invested in the process and neither wishes to leave without settling the dispute. It is important to remember, however, that because the mediator’s job is to get a settlement, regardless of its terms, it is up to you to determine if you can live with the settlement terms. In the event the Mediation fails and an Arbitration provision is not contained in the contract, you can enforce your rights in a court of law.

Binding Arbitration provisions, on the other hand, are a substitute for the formal process of a court. Binding Arbitration is typically conducted in front of one or three arbitrators and the Arbitration is much like a mini trial with rules of evidence. Arbitration typically proceeds somewhat faster than a case in court, and typically at a somewhat lower cost in attorney time and expense. The result of the Arbitration is final and the parties can rarely successfully appeal an arbitrators’ decision even if it appears to be completely unreasonable or unfair.