A mediation generally begins with both (or all) parties gathered around a conference table in one room. When the parties sit down at the mediation table, this is often the first opportunity they have to tell their story of the case directly to the other side. The mediator should allow each party ample time to describe fully what each one believes the case is about. After the parties and attorneys have provided as much information about the case as they wish, generally they are separated and taken to a conference room for each party. The mediator then begins shuttling back and forth between the two rooms. As the mediator meets with each party, in addition to providing the dollar amounts demanded and offered, the mediator can and should point out strengths and weaknesses of each side’s position. If the parties are having difficulty conceiving of terms that would be acceptable to both of them, the mediator can suggest a solution based upon the mediator’s experience in similar situations. Once the parties have reached an agreement on the terms of settlement, the mediator will reduce the agreement to writing and have the parties sign the written agreement.
Mediation is a voluntary, multi-faceted, and confidential process in which a mutually-selected, impartial mediator helps people involved in controversies to reach an outcome of their own making, which may include the resolution of issues and the preservation of vital relationships. Before the Mediation process can begin, the parties must agree in writing to procedures that they determine between themselves or to an existing set of procedures. Mediation agreements may be included as part of a contract that specifies what procedures will govern the mediation process. Alternatively, parties frequently agree to mediate following the onset of a dispute regardless of whether their contract stipulates mediation as a means of resolution, or when there is no contract between the parties.
The arbitrator closes the record regarding the case and issues a decision, inclusive of an award.
The arbitrator can allow the parties to file post-hearing submissions. This stage of the process provides parties with an opportunity to submit additional documentation, if allowed by the arbitrator. If this stage is necessary, it usually occurs shortly after hearings.
At this stage, parties have an opportunity to present testimony and evidence to the arbitrator in order to arrive at resolution. The rules of procedure and evidence that are followed in cases filed in courts are not necessarily followed, unless agree to by the parties.
Parties make ready their presentations, and the arbitrator can address any impasses or challenges related to information sharing. The goal of this stage is to arrive at the point where evidence and arguments may be presented in the hearings.
A preliminary hearing, conducted by the arbitrator, is the first opportunity for the parties and the arbitrator to discuss directly the substantive issues of the case. At this point, procedural matters such as the exchange of information, witness lists, etc., also will be discussed.
Following the respondent's answer, the AAA works with the parties to identify and select arbitrators from its roster of neutrals. The parties' criteria are used to identify neutrals with qualifications that match the needs of the case. Once parties agree on the neutral, the arbitration proceedings may begin.
The AAA generally commences administration of an arbitration case when one party submits a Demand for Arbitration, a copy of the arbitration provision and the appropriate filing fee to the AAA. From there, the respondent will be notified by the AAA, and a deadline will be set for an answer and/or counterclaim. Cases also may commence with a Submission to Dispute Resolution, the appropriate filing fee to the AAA and the consent of all parties if no arbitration agreement exists or the AAA is not named as the resolution provider in the agreement.
Arbitration is the submission of a dispute to one or more impartial persons for a final and binding decision, known as an "award." Awards are made in writing and are generally final and binding on the parties in the case. Mr. Daross is a Panel Member with the American Arbitration Association (the AAA), and all answers here will reflect the practices of the AAA. See www.adr.org.