GUEST-POST PART I | Questions Clients Have about Mediation: What is Mediation?

By Kent B. Scott and Cody W. Wilson

This series of posts will pose questions that clients have about mediation. We have found that mediation is most successful when attorneys and clients work through these questions together and map out a plan to achieve their objective—an agreed settlement rather than a resolution imposed by a judge, jury or arbitrator. The questions clients have about mediation are tools that can be used to design a successful mediation. The mediator’s understanding of these questions can provide a framework in which to conduct productive mediations.

What Is Mediation? How Does It Work?

Clients who have not previously participated in mediation will have no idea what mediation is or how it differs from arbitration or litigation. Thus, “What is mediation?” is likely to be the client’s first question. Mediation is one of several alternatives to litigation. It is the most informal of the alternatives (a more formal alternative is arbitration) and the only one that gives the parties control over the outcome.

Mediation is sometimes called a facilitated negotiation. The facilitator is the mediator, who must be neutral and have no interest in the dispute. The mediator is there to help the parties persuade each other that it is in their best interests to settle. The mediator does this by helping the parties find common ground and a basis for settlement.

The mediator usually meets at least once with the parties together and then conducts private meetings with each side. This encourages each party to speak candidly with the mediator about its interests and needs that must be met in order for a settlement to occur. Many mediators give “homework” for one side to do while they are in private caucus with the other side.

The parties to mediation have an obligation to participate in good faith. But they have no obligation to reach a settlement. That decision is completely voluntary.

Am I Required to Mediate?

The client may have sought out legal counsel without knowing whether it has an obligation to mediate. In a commercial dispute, the answer will usually be in the transaction documents. For example, mediation is now a requirement of some standard form construction documents.

If the transaction documents are silent as to mediation, the parties can agree to mediate after a dispute arises. This is true even if they have a contract requiring arbitration or litigation. However, one party cannot force the other to mediate.

A client may not ask specifically about court-annexed mediation, but this is relevant to the question of whether the client might be required to mediate. Courts in many jurisdictions require parties to mediate before allowing them to proceed to trial. In our jurisdiction, an increasing number of judges require attorneys to include a statement in their planning reports or scheduling orders that set out their plans for pre-trial mediation. So if the court would require mediation before trial, the client should consider whether it might be better off in private mediation where the parties can select the mediator of their choice and the rules under which they will mediate.

Part II will discuss the advantages and disadvantages of mediation. Stay tuned.

[Ed. note: the contents of this post were first published on a different form in the May/July 2008 Edition of the AAA Dispute Resolution Journal.]

Kent B. Scott is a shareholder in the law firm of Babcock Scott & Babcock in Salt Lake City whose practice focuses on the prevention and resolution of construction disputes. As a mediator and arbitrator, Mr. Scott currently serves on the AAA’s panel of mediators and the AAA’s Large Complex Construction Case Panel. He also serves on the arbitration and mediation panels for the U.S. District Courts (District of Utah), State District Court (Utah) and Utah Dispute Resolution. Mr. Scott is a founding member of the Dispute Resolution Section of the Utah Bar and a Trustee for the Utah Council on Conflict Resolution.

Cody W. Wilson is an associate in the law firm of Babcock Scott & Babcock, concentrating his practice in the area of construction law, is licensed in all courts in the State of Utah, the U.S. District Court of Utah, the 10th Circuit Court of Appeals, the U.S. Court of Federal Claims and is a member of the ABA Forum on the Construction Industry. They can be reached at kent@babcockscott.com and cody@babcockscott.com.