Mediation is an alternative
dispute resolution to litigation as a technique of resolving
disagreements. It is a discursive process by which a neutral third
party (the mediator) assists in the progress of discussion between
disputing parties in a non-partial and just manner in order to agree to
a mutual solution. Parties are assisted to identify and effectively
discuss the issues involved in the dispute. Mediators assist each
party to come to an amicable decision which is beneficial to both sides.
On the scale of interventionist
methods for resolving disputes, mediation is low in relation to
arbitration and litigation. It is a process whereby parties are able to
maintain control of the decision-making process. The mediator
does not make any decisions and only assists each party to come to a
harmonious decision.
The mediation process is protected
under California Evidence Code, §1115 through 1128. "No evidence
of anything said or any admission made for the purpose of, in the
course of, or pursuant to, a mediation or a mediation consultation is
admissible or subject to discovery, and disclosure of the evidence
shall not be compelled, in any arbitration, administrative
adjudication, civil action, or other non-criminal proceeding in which,
pursuant to law, testimony can be compelled to be given."
The mediator will explain his/her
expectations of the parties and review the agreement to mediate. The
mediator may gather general information about the dispute in order to
determine key issues. The mediator may need time to research
information about the context of the dispute (leaving specific details
to be disclosed and discussed in the actual session). These efforts on
the part of the mediator will expedite the actual mediation session,
benefitting all parties involved.
When the mediation session
convenes, the mediator will provide an opening statement. The opening
statement will largely be a review of information already discussed or
reviewed in the agreement to mediate. Following the mediator's opening
statement, each of the involved parties will be invited to make their
own opening statements.
Following the parties' opening
statements the mediator will help the parties identify the issues of
the conflict. He/she will then ask further questions to prompt
discussion about those issues. The mediator will continue to facilitate
the dialogue to avoid deviation from issues.
Either the mediator or the parties may ask for a caucus at any time
during the mediation. A caucus is an informal confidential meeting
between the mediator and an individual party and is protected under the
California Evidence Code. Anything disclosed in caucus will be kept in
confidence unless otherwise permitted by the disclosing party. Any time
a caucus is held with one party, a caucus will be held with each
individual party to ensure equality and impartiality.
Any agreement reached by the
parties on any issue will be reviewed by the mediator and drafted in a
mediation agreement. Agreements are only drafts and are not
legally-binding until reviewed by attorneys. (Agreements between
parties need not necessarily be subject to attorney review, depending
on the nature of the case, although it is advised.) Parties will be
provided with copies of any and all agreements reached.
Cancellation Policy for Mediation sessions:
For cases reserved through the
Elite Attorney Services, LLC office, there is no consequence for
cancellation of the Mediator’s reserved time, as long as our
office receives written notice at least 30 days prior to the scheduled
date of mediation. Cancellations and/or continuances of the scheduled
mediation that are received within the 30 day period may be subject to
a loss of fees paid for the time which was reserved for your Mediator.
Loss of fees, if any, shall be at the discretion of the Mediator
reserved for your case
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