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GOAL OF MEDIATION [Top]

The goal of mediation is to help parties voluntarily resolve their dispute on terms they come to understand are fair and reasonable

How we do this

  • Create safe and respectful environment for parties
  • Facilitate communication and promote understanding
  • Focus parties on prioritizing their interests and options
  • Help parties assess strengths and weaknesses of their positions
  • Assist parties evaluate the likely outcome in court if they cannot reach settlement
  • Vigorous reality testing
  • Creativity

“Many users [of mediation services] want mediators to do more than shuttle between parties to get to a dollar figure; they want their client’s emotional needs addressed by creative and intuitive mediators, along with reaching settlement.” ABA Task Force on Improving Mediation Quality of the American Bar Association Dispute Resolution Section, reporting on focus groups of high-end commercial mediation users in ten major cities in the U.S. and Canada.

CONFIDENTIALITY IN MEDIATION [Top]

Communication within mediation setting is confidential

  • The mediator maintains the confidentiality of communication shared jointly or individually by parties and attorneys, unless disclosure is compelled by the court
  • Parties and attorneys sign an agreement to maintain the confidentiality of communication within mediation
  • The mediator discloses communication shared in individual sessions only when the party making the communication consents to specific disclosures
  • The mediator does not disclose the conduct of parties and attorneys

ENHANCING THE LIKELIHOOD OF SUCCESS [Top]

What enhances the likelihood of success?

  • It is desirable that all the parties want to participate in mediation
    • Court-ordered mediation can succeed if parties maintain open minds about the mediation process and its potential for success
  • Preparation by attorneys in assessing the strengths and weaknesses of their case
  • Candor between attorney and client regarding the strengths and weaknesses of the case
  • Candor with the mediator
  • Preparation by the mediator
  • Participation by decision-makers
    • Although it’s desirable that parties be physically present at the mediation, sometimes decision-makers participate by telephone

PREPARING FOR MEDIATION [Top]

What happens prior to mediation?

  • Mediation Statement Please provide a confidential mediation statement to the mediator 7 to 10 days before mediation, setting out:
    • Parties // issues // relevant facts
    • Strengths // weaknesses of the case
    • Perceived value of the case
    • Posture of the case including dispositive motions, amount of discovery conducted
    • Prior settlement negotiations (formal or informal)
    • Demands or offers previously exchanged
    • Other issues mediator should know about
  • Preliminary meeting The mediator and attorneys meet prior to the mediation
    • By conference call or in person
    • Allows the mediator the opportunity to describe the mediation process, respond to questions and concerns, and ensure all parties agree to mediate and to selection of the mediator
    • No fee is charged for this meeting

WHAT TO EXPECT DURING MEDIATION [Top]

Typically, mediation consists of joint and individual sessions

  • Joint Session The mediation typically starts with a joint session of the parties and attorneys
    • The mediator describes the process, circulates the confidentiality agreement to be signed by all, and orients the participants to the facilities and amenities
    • In some circumstances parties or their attorneys make opening statements
    • Even though litigation can be stressful and emotional, the mediator requires that parties and their attorneys be respectful at all times
    • A joint session is not required and where appropriate, will not be held
      • In that circumstance, the mediation commences with the parties in their separate meeting rooms (see Individual Sessions, below)
      • And the mediator addresses the administrative matters individually with each party and their counsel

  • Individual Sessions Parties and their attorneys adjourn to separate meeting rooms
    • The mediator meets with each party and their attorneys
    • The mediator explores issues, concerns, interests and settlement possibilities with the parties and their attorneys
    • The mediator shares only what has been authorized
    • Through vigorous reality testing and creativity, the mediator strives to help parties reach resolution
  • Settlement When settlement is reached, our office assists parties memorialize their agreement in writing before parties adjourn // this can save future dispute or litigation about what parties agreed to
      • When settlement is not reached, mediator is available to continue working with parties by telephone and email // or another session can be scheduled

WHO PARTICIPATES IN MEDIATION [Top]

Generally, the following are present at mediation

  • Parties (or representative who has settlement authority)
  • Attorneys for the parties
  • Please confer with us if you wish to have anyone else present

THE COST OF OUR MEDIATION SERVICES [Top]

What does it cost and who pays?

    • Fee: Generally, the mediator is paid hourly for the time spent in mediation plus reasonable time for preparation. A set up fee is also charged
      • Please call our office for the current rates
      • We also will consider a sliding scale in appropriate cases
      • There is no fee charged for the preliminary conferences between the mediator and counsel prior to mediation
    • Costs: Actual costs incurred for items such as photocopies, long distance telephone and fax charges, and, if the mediation is outside of the Albuquerque area, travel
    • Meeting rooms: When the mediator’s meeting rooms can be used, there is no charge for the rooms // when rooms at another facility are used, actual cost is passed on to the parties
    • Who pays: Fees and costs are usually shared equally by parties, but that is a matter to be agreed upon by the parties prior to mediation

DISCLOSURE [Top]

Mediation is a voluntary process. Although we strive to provide the appropriate preparation, support and environment for your mediation, we can make no guarantees or representations that settlement will result.

We adhere to the Model Standards of Conduct for Mediators adopted by the American Bar Association, the American Arbitration Association, and the Association for Conflict Resolution and to the Uniform Mediation Act, drafted by the National Conference of Commissioners on Uniform State Law (copies of these documents are available at our office)

CONTACT US [Top]

We are happy to confer with you about scheduling a mediation. Our office phone is (505) 888-4300; our mobile phone is (505) 280-2097; our email is info@eavesandmendenhall.com.