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Mediation

Litigation

Focus

Accept the feelings, needs, experiences, and context of the parties as unique in designing a solution for all

Fit people and their problems into a broad, consistent matrix such that all are treated identically

Criteria applied in decision making

Achieving an outcome that all parties voluntarily accept

Apply the law to the facts found

Credo

Outcome should and can be tailored to the individuals and their circumstances

Justice is BLIND--Equal protection can translate into "One Size Fits All" remedy

Who is in Control, Sets the Rules and Procedures?

Mediator, Counselor, and Parties

Congress, the State, Supreme and Local Courts, the Judge(s)

Privacy Considerations

Private and Confidential

Open public records

Time and Convenience

Preparation and meeting times are set by counsel and parties' mutual agreement

Timelines are imposed by Case Schedule, State and Local Rules

Location

Wherever the parties choose

Fixed sites in population centers; no waiver allowed

Formality

Whatever is deemed important by parties and their counsel is considered

Structured Rules of Evidence limit admissibility of facts that are considered

Contact with Decision Maker

Parties decide, but all are free to speak with the mediator

No ex parte contact, not direct communication

Role in selection of the "neutral" person

Complete--selection upon recommendation of counsel and based upon experience with and of the Mediator

No control of selection of commissioners; none for judges other than one Affidavit of Prejudice each

Finality of Outcome

CR2a is binding, agreed orders are not subject to appeal

Subject to reconsideration, review, revision and appeal

Role of Lawyer

Counselor, fact finder, persuader, negotiator, and advocate

Attorney, researcher of law and facts, memo writer, and advocate

Role of Neutral Person

Educate, evaluate, explore how various options may apply to meet the needs of all parties

Proclaim the general law, apply it specifically to the parties and their issues

Qualifications of Neutral Person

Knowledge, conflicts to be disclosed; may be waived

No knowledge of parties or apparent conflicts of interest

Stake in Outcome

Problems come back; individual's reputation and future referrals depend upon satisfactory outcome

None--on to next case

Limitations to Decision

One can "Think Outside the Box" in arriving at solutions

Strictly bound by precedent

Expense/Utility of Time

Minimized: Parties may stipulate to avoid excess discovery; need for experts is diminished; no delay in getting courtroom; session time is as all agree

Great: Requires excess discovery for CYA, trial preparation time, retention of experts, delay in getting courtroom, heavily structured times for hearing

Overal Time to Outcome

As determined by the parties

Determined by Rules, court, procedures and appeals

Common Feelings at Conclusion

Relief, closure, ready to plan for the future

Ripped off, treated unfairly, "put through the wringer"