If you have never been involved in real estate or business mediation, there are a few things that you need to know. First of all, mediation is confidential. Everything that is discussed and documents prepared specifically for the mediation are not used outside of the mediation process. They are not used in any portion of any ensuing trial or litigation. The confidentiality of mediation is in place to ensure that parties and attorneys can freely discuss facts and issues openly without the fear that comes they consider the harm their words could inflict on their case outside of the mediation process. This allows the parties to speak openly which is the entire reason that mediation can be successful in leading parties towards solutions and settlement agreements.
In traditional mediation, there are different phases. The first phase is the joint session. For the joint session, the parties, their attorneys, and the mediator are all present. Additional individuals can be present if either party chooses (i.e. experts or psychologists). The attorneys start by presenting their client’s view of the facts of the case followed by a discussion of law in application to the case. During mediation, it is critical for the opposing party to tell their story personally in order to be heard by the opposing party and opposing counsel.
In almost every case, parties who listen carefully will discover that the opposing party’s perception of events related to the case is in stark contrast to their own. The awareness of these major differences in perception is very beneficial. This leaves both parties suddenly aware of what led to the dispute at hand. A careful consideration of the different positions, important issues, and alternate perceptions can give everyone an understanding of how difficult it is for a judge and/or jury to come to a fair conclusion. Who is right? Who is telling the truth? Who can prove their claims with proof?
When all participants of mediation are involved and do their part in the process, it is likely that mediation will succeed. This full participation begins prior to the actual start of mediation. Each party should begin their participation in the process by assisting in the planning of the mediation process. Each party needs to help their attorney prepare for the mediation and then listen carefully to what the opposing counsel offers with their opening statement. This is a good preview of what the judge or jury will hear if the mediation is not successful and the case goes to trial.
If you are considering mediation as a means of obtaining closure and commitment to settlement terms, please get in touch with one of the experienced southern California business and real estate attorneys at The Law Office of Retz & Aldover LLP today. We can help you prepare for mediation and successfully navigate what is fast becoming one of the most popular means of resolving modern day legal disputes.