Litigation ENewsletter November 17 2011

Mediation, which can be described as "assisted negotiation," is the fastest growing Alternative Dispute Resolution (ADR) method. Many courts now require that disputes be mediated before they are heard in court. Mediation is different from arbitration in that the parties create their own settlement terms with the assistance of a neutral mediator. The mediator's job is to keep the parties talking and to move them toward compromise. To accomplish that, the mediator engages in discussions with both parties to identify the core issues and obtain agreement on minor issues. The mediator then proposes various settlement options. Lawyers are essential to this process because they can point out the risks of the various settlement proposals and help the parties focus their energies on solutions that best meet their legal needs. Because mediation is not binding unless the parties reach an agreement, the only risks are the time spent and the possibility of disclosing to the other side potentially damaging facts.