What Makes Mediation a Good Option?
Mediation is where resolution relies on the decision-making of the parties to reach a mutually satisfactory agreement. A mediated resolution removes the uncertainty of, and preserves control over, the outcome.
The vast majority of cases that resolve without a trial are the ones where the parties engage in a good faith negotiation. Such cases forego the risk of adverse court rulings and the cost of trial.
Negotiated resolutions take the guesswork out of litigated outcomes. As the parties learn more about the dispute from each other, the liability risks come into better focus. In a confidential setting, an open good faith dialogue identifies where risks and common interests overlap lighting the path to resolution. Agreements reached are reduced to carefully considered written “durable” agreements memorializing expectations that the parties can refer to in the future.
In mediation parties are free to resolve their issues in ways unavailable to a court. Juries are bound by the limits of their instructions and judges ordinarily dispense equity by ordering payments of cash sums. Mediation provides an opportunity for parties to create more relevant resolutions of potentially greater and more lasting value than a singular payment of a cash sum. Examples are virtually limitless, and it will be up to the parties to identify those specific opportunities, for example trades, discounts, payment plans, new or revised contract terms, restructured financing, reformed partnerships, etc. In the end, the parties will be in control of the outcome. Even if the negotiated resolution ends up being a cash sum, in mediation the parties have the power to schedule that payment, set interest rates, and agree to any condition beyond the limits of a judgment’s statutorily scope if necessary.
About My Practice
Prior to attending Seattle University School of Law, I worked as a cost engineer on large multi-million dollar industrial construction projects ensuring communication between the various design and construction disciplines. Since graduating law school in 1996, I have litigated cases in federal and state court from his office in Seattle. After serving as a case manager for the Dispute Resolution Center of King County and completing their mediation program in 2009, I mediated matters involving construction, commercial suppliers/vendors, landlord/tenant issues, and employment issues. In 2011, I was approved by Washington’s Department of Commerce as a foreclosure mediator. By 2015 I had handled around 300 referrals to foreclosure mediation and held multiple mediation sessions on around 200 of those referrals.
The mediator’s role may be easier remembered by what they will not do. Mediators make no decision regarding how the parties resolve their dispute. A mediator may acknowledge authority presented by parties, but they do not render any legal or factual opinions of any kind, nor do mediators represent, in any capacity, anyone involved, or having a stake, in the dispute.
Mediators do however, facilitate the negotiation. More than refereeing a negotiation, mediators ask for clarification and reframe positions for clearer understanding. A good mediator facilitates a negotiation with unyielding neutrality and unflinching curiosity.
Preparation minimizes the time the parties spend getting the mediator up to speed and maximizes time spent on the issues. I do request brief, 2-5 page pre-mediation statements, and I will specify any other requests in my engagement letter. Primarily, the parties should identify what they want to discuss and be prepared with a list of issues. Such agendas organize negotiations and help keep track of agreements as they are made.
The parties agree to update the mediator as to the case status and procedural posture. Such understanding gives the mediator the context necessary to assist the parties in addressing preliminary issues such as scheduling and court-ordered ADR compliance.
Those with a stake in the outcome must attend. Witnesses, consultants, experts, adjusters, underwriters, etc., may attend by phone but parties with an interest in the outcome must be present with appropriate and sufficient authority to make and accept offers of settlement.
Quoted mediation fees are intended to be divided equally between parties unless parties agree otherwise.
All pre-session preparation is billed at $375/hour.
THERE ARE TWO HOURLY MEDIATION SESSION RATES:
The party-hosted hourly rate is $375/hour
The mediator-hosted rate is $425/hour
- A three hour minimum is charged and due on the day of the mediation session. Any outstanding balance will be billed after completion of the mediation session and is due in seven days. Non-session follow-up is available at no additional charge.
- Responsibility for payment and party-collection falls on the attorney or party representative.
- The cancellation policy is flexible until 48 hours prior to the schedule session start time. Cancellations received within 48 hours of the scheduled start time are billed for 100% of the mediator’s preparation time. Cases that settle within 48 hours of the scheduled mediation session are exempt from the mediator’s preparation time billing.
- The parties agree to apprise the mediator of any updated trial schedule, deadlines for alternative dispute resolution, withdrawal, dismissal, or any other court-ordered mediation-related requirement.
Success Requires Good Faith
What makes collaboration work is good faith. Good faith requires a commitment to listen and share. This can be difficult as it requires vulnerability. However, vulnerability is a tremendous source of problem-solving when shared. The strict confidentiality in mediation acts as a shield against overly prejudicial exposure. Good faith can be thought of as an unremitting curiosity and tenacious demand for understanding. The more each party learns from each other, the greater the likelihood for resolution.