Disputes erupt every day; whether it is a dispute over property or dispute over a car accident, the issues between the disputing parties can be endless. To resolve the dispute, each party needs to share what they want and what they are willing to compromise or willing to give. It sounds simple enough, but some disputes can be complicated and serious enough to require intervention such as private mediation or court-sponsored mediation. Before the parties can select a method to meet their needs, they should have an understanding of the differences between private mediation and a court-sponsored mediation.
Compared to the traditional litigation process, private mediation can be less expensive and less time consuming. Private mediation is an informal process were two or more individuals in dispute agree to hire and pay a neutral third party, otherwise known as a mediator. The mediator assists with the discussions between the parties in order to work towards a resolution. In a private mediation, the disputing parties have a choice to create the rules for the mediation, or they can agree to have the mediator design the rules for the proceedings. As the term private mediation implies, the entire process is private and remains confidential even after the proceedings have ended. The disputing parties have the option to have their attorney’s present; however, both the attorneys and the mediator must remain neutral, meaning they do not resolve the dispute for the parties. The disputing parties must resolve the dispute on their own. The mediator’s duties are to maintain order throughout the proceedings so that the disputing parties can rationally discuss their problems and find common ground to resolve their dispute. The attorney’s role is to offer legal advice to their client, yet they cannot offer opinions or persuade their client in making decisions. The disputing parties can introduce documents or other evidence; however, it is not important to the mediator because their role is not to make a decision, nor is it the role of the mediator to weigh the merits parties’ position. To introduce evidence would impede this role of being neutral. Yet the parties may find the documents and other evidence useful in understanding the merits, or lack of, in solving their own dispute. In essence, private mediation is a four step process.
First, the mediator may begin by introducing the parties to the mediation process. Second, the parties are given the opportunity to give an opening statement which they introduce the facts and their feelings towards the dispute. Third, after each party states their position, the mediator will help the parties begin the negotiation process which enables the parties to work towards an agreement. Fourth, if an agreement has been reached between the parties, the mediator will refine and finalize their agreement in writing. The agreement can be either binding or non-binding which is dependent on the rules the parties established for their private mediation. If each party agrees to the terms, they will sign and date the written agreement known as a contract between the parties.
A more formal process of settling a dispute, compared to the private mediation, is court-sponsored mediation. While private mediation and court-sponsored mediation have a similar goal that is to help the disputing parties work towards a resolution, they each consist of different methods. Unlike a private mediation, in a court-sponsored mediation the courts create the rules yet the parties can request a either binding or non-binding mediation. Moreover, the parties may, depending on the rules, select a judge or a mediator to preside over the proceedings. In addition, a court-sponsored mediation consists of an eight step process.
The first step begins when a complaint or law suit is filed with the court at which time the party filing the complaint is known as the plaintiff and the other party involuntarily becomes the defendant. When the defendant receives the complaint, the defendant will file a response to the complaint known as an answer; whereas in a private mediation a complaint filed with the court is not required. The second step begins after the complaint is filed where a federal district judge is assigned to the case and meets with the parties known as a case management conference. It is at this time the judge may order a court-sponsored mediation. Steps three and four are jointly related which is the process of selecting a mediator and the appointment of the mediator. The availability and the issues surrounding the dispute will determine the appointment of the mediator, but once a selection is made the appointed mediator will receive an appointment letter as well as a copy of the docket sheet. The docket sheet is review by the appointed mediator to insure there is no conflict of interest. The appointment letter includes suggested dates for the mediation; if there are no conflicts the appointed mediator will contact the administrator to establish the date, place and time of the court-sponsored mediation. Step five occurs if the court has developed a court-sponsored mediation order, which informs the appointed mediator and the parties together with their attorneys of the date, time, and place of the mediation. The order may further outline the purpose of the court-sponsored mediation as well as any other rules, such as settlement authority.
Step six may be included in the court-sponsored order, which is an order for each party to submit their statements to the mediator and other parties involved such as the opposing counsel, and administrator. Like private mediation, a court–sponsored mediation is private. The contents of the statements provided by the parties are confidential, which means that if the parties are unable to resolve their dispute and the case is litigated in court the contents or statements cannot be used in court. Step seven, is the crux of the mediation where the parties may be required to sign in and mediator begins the process with an opening statement followed by the parties attorney’s opening statements, as well as settlement discussions. Depending on the rules, the parties may present documents and evidence; however, like private mediation the party’s objective is not to persuade the mediator with documents or evidence. Therefore, the documents or evidence would useful between the parties in identify a common ground in settling their own dispute. It is common during the settlement discussion for the proceedings to include private caucuses where the attorneys may meet separately with the mediator, with or without the parties. Nevertheless, the disputing parties and not the mediator must find a resolution to end the dispute. The mediator’s role is to listen and clarify the needs and interest of the parties. Unlike private mediation, the attorney’s role is not only to provide legal advice, but to represent the party’s best interest.
Finally, step seven includes a closing, if agreements are reached, and the agreements are finalized by the mediator and signed by the disputing parties. Step eight, the mediator will follow up with the court administrator with a report which will indicate whether the parties reached agreement and settled the case. In addition, the attorneys and the parties will commence with the agreed terms of the settled agreement. Consequently, until the terms of the agreement are reached the complaint is not dismissed; once settlement agreement is completed the court will issue an order of dismissal with prejudice which ends the dispute.
Comparing private mediation and court-sponsored mediation, there are some similarities. First, beginning with the parties willingness to participate in mediation; and second, both methods are private and confidential. Third, the parties must resolve the dispute on their own. In addition to the similarities, there are differences between private mediation and court-sponsored mediation. In a private mediation, the parties can select a mediator or mediator service, but in a court-sponsored mediation a judge or mediator is appointed by a court administrator. Unlike a court-sponsored mediation where the rules are designed for the parties; in a private mediation the parties have the option to create their own rules or elect to have the mediator design the rules for them. In addition, in a private mediation a complaint filed with the court is not necessary compared to the court-sponsored mediation where a complaint is filed with the court. The primary purpose, however, for both private mediation and court-sponsored mediation is to provide a system to help the disputing parties work towards resolving their dispute in a cost effective way, and in less time consuming manner.
Frey M.A. (2003). Alternative Methods of Dispute Resolution. Clifton Park: Delmar Learning