Inside resolution outside of court: Exploring options for settling disputes without going to trial

In this article, we’ll describe private mediations and how to prepare for them

 

 

The Complete Guide to a Private Mediations:

• What is a private mediation?

• Who attends a private mediation?

• What happens in a private mediation?

• How long does a private mediation last?

• How is a private mediation different from a DRC mediation?

• What are the strengths of a private mediation?

What is a private mediation?

A private mediation is another tool for trying to settle a dispute without going to trial. It is similar to a settlement conference or a Dispute Resolution Center (DRC) mediation session, where the parties make their own decisions, but the mediators are often more knowledgeable in the particular topic being disputed and more skilled helping the parties reach an agreement.  The mediator is selected by and agreed to by the parties themselves.

Who attends a private mediation?

This is a private session, there can be some flexibility in who attends, but generally, it will only be the parties to the legal action or divorce, and their attorneys, in addition to the mediator.

What happens in a private mediation?

The structure of a private mediation is similar to that of a settlement conference; however, it is conducted in the way selected by the mediator.  A session may include an opening statement by the mediator and possibly the parties or the parties’ legal counsels, a negotiation process, and a settlement if an agreement is reached. As with other aspects of private mediations, there can be more flexibility in the way a mediation is conducted than in more standardized practices such as DRC mediations and settlement conferences.

How long does a private mediation last?

Private mediations are less bound by time constraints then DRC mediations and settlement conferences. Typically, a session is scheduled for a half or full day and continues until a settlement has been reached or the parties decide that they will not be successful.  In private mediations, there is a better chance that the mediator may continue to facilitate settlement discussions after-the-fact if a settlement is not reached during the scheduled mediation time.

 

How is a private mediation different from a DRC mediation and a settlement conference?

These should be taken as general guidelines, as DRC mediations may vary among DRCs even though they do share a common procedural framework, and settlement conferences may vary among jurisdictions, and among judicial officers presiding the conference.

In general, private mediations:

• Can take place in any suitable, agreed upon office, while DRC mediations generally take place at a DRC or DRC-partner venue determined by scheduling availability, and settlement conferences usually take place in a room at the courthouse.

 

• Can be scheduled anytime that is compatible with the participants’ schedules, while DRC scheduling is driven by the availability of mediators (who are volunteers) and rooms, and settlement conferences are driven by court requirements, operating hours, and availability of settlement conference judges.

 

• Can have flexible duration to accommodate the parties’ needs, while DRC mediations and settlement conferences have a fixed duration, although additional sessions can be scheduled as needed.

 

• Have an hourly fee for mediators that is usually split 50-50 between the parties (unless specific circumstances require a different arrangement), while DRCs and courts usually have a per-session fee. For a DRC mediation, the fee is usually assessed for each party individually, based on a sliding scale of the number of people in the household and combined income for that household. For a settlement conference, the fee practice varies among jurisdictions, and there may be a small fee.

 

• Allow the parties to choose the mediators, while that is not possible with DRC mediations and settlement conferences. This is an important decision that is usually made with the advice of a skilled lawyer.

 

• Are scheduled and managed by the parties’ attorneys, while many DRCs, for example, the DRC of Thurston County, do not allow attorney participation.

 

What are the strengths of a private mediation?

Because of their characteristics, private mediations have a number of strengths:

•  Quick timing. Scheduling a private mediation is usually faster than going through court and scheduling a DRC mediation. This is especially advantageous in those jurisdictions where attempting mediation is compulsory before scheduling a settlement conference.

 

• Flexible duration. Within reasonable terms, a private mediation can last as long as it is necessary to resolve the issues at hand, without having to schedule additional sessions.  Or, if there is no resolution, there is a better chance that the mediator may stay involved to facilitate continuing settlement discussions.

 

• Choice of location. Private mediations can be held in any location that is convenient to the participants or at the choice of the mediator.

 

• Choice of mediators. The parties can choose the mediators, and this is usually done by their lawyers that are skilled in mediation and knowledgeable about their client’s case. Mediators have usually retired trial judges or practicing or retired attorneys, well experienced in the field and trained as impartial facilitators. Whereas, some settlement conference judges may have limited negotiation experience.

 

• Attorneys’ active participation. Attorneys that are knowledgeable in family law and mediation will assist their clients throughout the process: they will assemble and draft all the required documents (including the settlement agreement that may result from the mediation session), they will prepare their clients for the session and carry out the negotiations for their client during the session, both in a private mediation and in a settlement conference.