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Resources Commercial Arbitration Rules Demand for Arbitration Sample ADR Contracts Sample Contract Clauses Supreme Court Rule 90(C) Legal Links ADR Glossary	ADR Glossary Mediation What is mediation? Mediation is a dispute resolution process where a third-party neutral facilitates the negotiations of two or more parties in achieving a mutually acceptable agreement. The principles of mediation are: Participation is voluntary. No resolution should be imposed on any participant. Any resolution is by mutual agreement and is voluntary. The process is private. Only the people directly involved in the dispute, those who represent them, and those who are integral to the resolution of the problem should be in attendance at the mediation. Mediation is confidential. There is no need for others to know about what happens in the mediation unless the participants and the mediator agree that it would be beneficial, or there are compelling reasons to limit confidentiality. The parties control the outcome of the mediation. People are responsible for their own conflict and their own resolutions. Choices are made through informed decision making. People must have adequate information with which to make informed decisions about their conflict’s resolution. What is the role of the mediator? The mediator is a neutral third-party that has been selected by the parties to facilitate negotiations. The mediator manages the process, but has no stake in or ability to decide the outcome of the dispute. The mediator: Assists with getting the right people into the negotiation Eases communication Provides for safe, constructive exchanges of information Educates in negotiation skills Manages emotions Maintains focus on problem-solving Keeps the process moving Reminds the parties that agreement must be mutually acceptable Reality tests the implementation plan and documents the agreement What are the different approaches to mediation? FACILITATIVE: This is the basic form of mediation. All other forms of mediation are built on facilitative mediation. The mediator may make suggestions for settlement options but does not give an advisory opinion on any legal or factual issues in the dispute. EVALUATIVE: In an evaluative mediation, the mediator gives an advisory opinion as to the likely outcome of the dispute, or an issue within the dispute, if litigated or arbitrated. Opinions may take a variety of forms. There may be a specific opinion on the likely outcome of legal issues in court. There may be an opinion that a judge or jury is more likely to find in favor of one party or the other on a particular issue. The opinion might be a range within which the mediator thinks the damages would fall if a verdict is rendered by a court or a jury. TRANSFORMATIVE: For many it is assumed that the purpose of mediation is to help two or more parties involved in a dispute resolve a particular problem or set of problems in a way that is mutually agreeable. In transformative mediation, the process focuses on empowering individuals with the knowledge that they can shape their own destiny and to teach them to recognize and have compassion for others. In the transformative approach to mediation, the value of the mediation experience is not dependant on what the mediator can do to facilitate resolving the conflict, but merely on the parties coming together in a forum that allows each the opportunity to be heard, and forces each to hear the other. **Most experienced mediators combine all of the above three approaches in their cadre of tools for facilitating settlement. Binding Mediation If mediation is unsuccessful, the mediator makes a binding decision at a figure within the mediated bracket. This process is best when agreed to prior to the commencement of the mediation process. This is also known as Med-Arb, see definition below. Arbitration Arbitration isa trial like process of dispute resolution. It is designed for quick, practical and inexpensive resolution. The parties each make a presentation of evidence to the arbitrator. The arbitrator then makes a final and binding decision, which can be enforced in court. Non-binding Arbitration A process that is similar to arbitration in everything but the decision is only recommended and not binding. Neutral Expert Fact Finding Parties appoint a neutral third-party to develop responses to factual questions. The parties typically determine in advance how the results of the process will be used. This process can be particularly useful in investigating employment disputes such as allegations of misconduct or harassment, because traditional adversarial resolution processes might not meet all parties’ needs. Fact-finding is often used in combination with other dispute resolution processes. Tripartite Arbitration Each party unilaterally appoints one arbitrator, after which the appointed arbitrators or the parties agree on a third, neutral arbitrator. Absent an agreement between the parties, their selected arbitrators are normally assumed to be aligned with the side that appointed them and to lack the neutrality expected of the third member of the panel, who serves as the ultimate decision maker in the dispute. Med-Arb If the parties are unsuccessful in mediation, the mediator becomes an arbitrator and renders a binding decision following the mediation process on any issues where the parties failed to reach agreement in the mediation. Med-Arb (Dif) This process is similar to Med-Arb, except that prior to mediation, the parties may agree that if agreement is not reached, that an arbitrator, different from the mediator, will be employed to resolve the open issues. Arb-Med This is the opposite of Med-Arb. The parties first arbitrate the matter, then the arbitrator makes a decision, but reveals the arbitration results only if there is no agreement in the following mediation. The arbitrator’s decision, having already been made, will not be influenced by any confidential information of the parties. Settlement Conference This is a form of mediation that is often attached to litigation and can be voluntary (VSC) or mandatory (MSC). Depending on the settlement conference judge, the conference may be pure mediation, but more often the neutral will use some form of pressure to encourage the parties to settle. This pressure is usually based on the neutral’s evaluation of each party’s case. Final Offer Arbitration- Baseball Arbitration This process received its name because it is often used in player salary negotiations in major league baseball. Each party negotiates until the point of impasse and then each party makes an offer to settle at a particular dollar amount. The two figures are then submitted to the arbitrator, who must choose between them. The arbitrator does not have the authority to modify the figures submitted, or select another figure. This process encourages the parties to make reasonable demands at the onset. High-Low Arbitration When high-low arbitration is chosen, specific Supreme Court rules can apply which both the neutral and the parties must follow. "90(c)" packages are submitted to the neutral and the other parties involved one to two weeks prior to the conference. The parties also agree on a high and low number, which act as the ceiling and floor of the award. The high and low numbers are not disclosed to the neutral. This allows everyone to come prepared, and eliminates possible surprises. This process, with decisions being based solely on the law, submissions, and the evidence heard during the hearings, provides for more consistent, predictable results in a case. Final Offer – Night Baseball Arbitration This is a variation on baseball arbitration. The parties establish their demands but do not reveal them to the arbitrator. The demand that is closest to the arbitrator’s decision becomes the binding arbitration award.
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