Mediation: What Is It and How to Prepare

Mediation is a monitored negotiation facilitated by a neutral third-party. It is a dispute resolution method available to investors.  If the other side agrees, you can try mediation before ever filing a Statement of Claim and at any point afterward. Mediation differs from arbitration because the mediator does not make the decisions. Instead, the mediator facilitates negotiation between the parties as they try to resolve the dispute and reach a settlement.

The mediator facilitates settlement by supervising the exchange of information and the bargaining process. The mediator helps the parties find common ground and deal with unrealistic expectations. He or she may also offer creative solutions and assist in drafting a final settlement agreement. A mediator may help parties discuss concerns, relay information between the parties, and define the problems to be resolved.

Mediation is a voluntary process.  If no settlement is reached through mediation, the parties continue on the course of the case. Any settlement offers made during mediation may not be mentioned during the arbitration.  The defense cannot argue that an arbitrator should give you less money because you turned down a prior settlement offer that you did not want to accept.

The parties and their mediator control the mediation process -- deciding when and where the mediation takes place, who will be present, how the mediation will be paid for, and how the mediator will interact with the parties. Typically, the parties in a mediation will split the cost equally. 

Benefits to Mediation

1. Meditation offers potential for a settlement without having to go all the way through the arbitration process. Resolving the case efficiently may mean you get a resolution more quickly than you would otherwise.
2. Mediation also focuses your attorney on your case. Preparing for meditation will make the attorney more effective if she needs to prepare for an arbitration later.
3. Mediation also offers a chance to learn more information. This includes learning whether the opposing party is willing settle and some insight into how they may value the case.  You can also learn about the personalities of the opposing party and their attorneys as well as the strength of their evidence and arguments that you may need to deal with at arbitration.

Mediation Negatives?

Mediation does come with a cost.  This cost however is usually small compared to the benefits offered by mediation.  You will likely need to contribute to help pay for the services of the mediator. Preparing for and attending the mediation may also take some time.