MEDIATION

 

Attorney Pelczarski performs mediations to assist parties to resolve their disputes inexpensively and expeditiously in a comfortable informed setting. She earned certification as a mediator by the renowned Mediation Institute in 2008.

 

 WHAT IS MEDIATION?

 

Mediation is a voluntary process in which parties to a dispute come together to try to resolve their differences outside of court.  An impartial mediator, who remains neutral during the process, facilitates communications and negotiations between the parties to assist them in finding common ground and reaching resolution.

Mediation is a method of alternate dispute resolution that is growing in popularity.  It differs from arbitration, another common method of alternative dispute resolution, because arbitrators make decisions.  On the other hand, a mediator does not make any decision.  Nor does she take sides or represent any of the parties.

 

 

During a mediation, the mediator facilitates a discussion wherein parties are encouraged to explore common ground and consider a broad range of solutions.  In the process, the mediator provides the parties with opportunities to define and clarify the issues, and to identify their respective interests and goals.  The mediator helps the parties move through impasses, perform reality testing of solutions, understand different perspectives, and explore and assess possible monetary and non-monetary solutions, all in an effort to reach a satisfactory agreement.  Mediation can be effective in resolving virtually every kind of dispute, no matter how complex, and irrespective of the number of parties involved.  Mediations may occur as early as before litigation is instituted, or as late as after trial or during an appeal.

 

IMPORTANT ATTRIBUTES OF MEDIATION

 

Mediations are completely voluntary.  No one can be forced into a resolution.  Also, both (or all) parties must agree to participate in a mediation before it may occur.  They must also agree on a mediator.

Mediations are confidential.  Parties are required not to reveal anything that is said during a mediation.  Rules of evidence do not permit anything that is said in a mediation to be repeated in court.

Mediations are expeditious.  Most frequently, they are performed in the mediator’s office, and rarely do they last longer than one day.

 

WHY MEDIATION?

 

Costs Litigation can be prohibitively expensive, and the expenses do not only include lawyers’ fees.  Most trials require expert testimony, and experts can be very expensive.  Depositions and other pre-trial discovery can also be costly.  Ultimately, the winners are often the losers in terms of their time and the costs involved.  A mediation can provide a way of settling a matter before additional costs are incurred.

Time  Litigation is becoming increasingly protracted and drawn out.  It can take several years for a case to go to court.  If the decision is appealed, it can take one or more years for the appeal to be concluded.  Mediation provides a way to resolve the matter immediately.

Privacy  In the process of litigation, parties often lose their privacy.  Their cases may be reported in legal journals or newspapers.  Also, after a court case is filed, discovery is conducted where witnesses are deposed, written questions called interrogatories must be answered, and documents which may be relevant to the trial must be produced.  This information can include highly personal information, such as financial statements, tax returns, medical records, and psychiatric reports.  Mediations provide a way of settling a matter before this information is revealed to others or becomes part of a public court record.

Flexibility Mediations can result in resolutions which courts lack authority to devise.  When parties pursue their cases in court, generally one side wins, the other side loses, and the resolution usually involves a lump sum monetary damage award.  Through mediation, many other possibilities emerge.  For example, parties may agree to a monetary award with payments over time, or from an outside source.  The resolution may include exchanges or in-kind payments.  They may involve rewriting contracts or granting new employment positions.  They may be contingent on future events.  Often, by changing the methodology of settlement payments, parties can alter tax consequences to their advantage.

Control  In a mediation, the parties themselves agree to what the issues are and the possible outcomes.  Also, parties are given the opportunity to discuss their cases themselves, without having to speak through their lawyers.  They are also given the opportunity to point out what they believe to be the important facts, without being restricted by the rules of evidence in a court of law.  Ultimately, only they can decide whether or not to resolve their dispute in the mediation.

Results Statistics vary depending on the type of cases involved or the courts in which they are brought, but most statistics consistently indicate that over 95% of cases settle out of court.  When settlements are reached without the assistance of a trained mediator, the results may be less than optimal.

 

Law Office of Karen Pelczarski • 320 South Main Street, Providence, Rhode Island 02903 • 401 323 8920 • karen@kpellaw.com