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Frequently Asked Questions and Answers About Mediation

What is mediation?

Mediation is a structured settlement process intended to assist clients involved in litigation in resolving their differences and reaching an agreement without involving the court.  Mediation is frequently a voluntary process, but may be ordered by the Court.

 

How does mediation work?

Each client and his or her lawyer will have an opportunity to speak directly to the mediator about their perspective of the case.  The clients and their respective attorneys will be in separate rooms for the duration of the process (each party remaining with his or her respective lawyer), and the mediator will travel between the rooms to facilitate settlement negotiations.

 

Can the mediator tell us how to resolve the case?

No.  The mediator works as a communications facilitator as well as a negotiator to help the clients and their lawyers reach an amicable resolution to the lawsuit, but the mediator cannot tell either party what to do.  Similarly, the mediator cannot give legal advice.  The clients must rely on the advice of their lawyers to decide whether a settlement offer should be accepted or rejected.

 

Will the Court find out what we talked about at mediation?

No.  Mediation discussions, including settlement offers, are confidential and may not be shared with the court.  The mediator may only report to the court whether the clients appeared for mediation and whether the case settled.

 

Can the mediator be a witness at trial?

No.  The mediator cannot be a witness for either party at trial.  The mediator’s notes and file may not be subpoenaed by any party or compelled to be produced to the court.

 

Who may attend mediation?

The parties to a lawsuit must attend mediation, as well as any representatives with authority to settle the case. Unless the clients agree otherwise, non-parties (such as friends and family members) are not permitted to attend mediation.

 

What happens when we reach an agreement?

The mediator and the lawyers will draft a Mediated Settlement Agreement (“MSA”).  The MSA will be signed by both parties, their lawyers, and the mediator. The MSA is binding and irrevocable.  After the MSA is signed, the lawyers will usually draft an order containing the terms of the MSA to be entered by the court.

 

Can I change my mind after I sign the MSA?

No.  The MSA is a binding agreement and is enforceable against the parties.

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