Q:     What is the difference between mediation, a settlement conference in a lawsuit and arbitration?

 A:    Mediation is the process of voluntary dispute settlement by the parties which is facilitated by a neutral mediator with all proceedings confidential.  A settlement conference in a lawsuit is usually conducted with the trial judge who will hear the case.  Arbitration, while less formal than litigation, also results in a dispute being decided by a third-party.

Q:     As a matter of principle, why should I consider an early settlement when I believe strongly that I am correct?

 A:     It can be better to settle at the cost of principle than win at a high cost.  Even the successful parties often do not achieve a clear victory.  Remember, it is estimated that 99% of all business lawsuits never go to trial.  Early mediation is a way to reduce the pain of getting to the point of settlement.

Q:     Why should I spend the time and money to mediate when I can always have a settlement conversation directly?
A:     If you can you should.  However, the difficulty with direct party negotiations is that most parties believe strongly in their positions.  As a result, many direct party settlement conversations, especially at the beginning of  a lawsuit, often are more about strongly stating positions than actually trying to settle.  In mediation, parties are asked to focus on their main interests – the first step toward finding ways to meet those interests.  While there is no guaranty of success, it is estimated that about 85% of disputes submitted to mediation result in settlement agreements.
Q:     Will I show weakness by suggesting mediation?
A:     Not to the mediator.  The mediator cannot impose settlement terms and has a duty of confidentiality not to disclose the positions or statements of the parties unless specifically agreed or required by law.  If you are worried that the other party may think you “blinked,” the cost savings of an early settlement outweighs that concern – besides there will be ample opportunity for the “icy stare” in litigation if settlement is not reached.

Q:     Does a willingness to mediate encourage others to pursue weak claims or defenses?

A:     Mediation is voluntary and mediating one claim does not obligate you to mediate the next.  Settlement is private and can contain conditions relating to disclosure.

Q:     Why would I mediate a claim before litigation is filed?

 A:     To the extent mediation gives both parties an opportunity to understand the interests of one another and to gauge the depth of the commitment of the other parties, it can be a benefit in preventing litigation that is filed because of wrongful assumptions.

Q:     Once mediation is started do I have to complete the process?

A:     No.  Business Mediation Network follows the Model Standards of Conduct for Mediators which affirms that each party has the right of self-determination at all stages of the mediation including the withdrawal from the process prior to signing a final settlement agreement.  By contract, the parties can agree to participate in one or more mediation conference sessions but the ultimate decision to settle is voluntary.