Masonry Magazine October 1998 Page. 29
Straightforward
Mediation procedure is simple and straightforward. Usually, short briefs are exchanged outlining the factual background of the dispute, the key issues, and the applicable law (AAA rule M-9). At the mediation, after opening statements by counsel, there may be presentations by experts or by one or two key participant witnesses, usually followed by some group discussion of important issues.
Thereafter, the mediator caucuses with each party individually to discuss the strengths and weaknesses of its position and to explore settlement options.
Voluntary
Mediation is never "binding," but is a process that can be used to reach a voluntary settlement. The mediation process encourages the participation of the parties and allows them to craft their own resolution, rather than having one imposed by an arbitrator, a judge, or a jury. After a successful mediation, parties have the satisfaction of knowing that they retained control of the settlement of their dispute. Mediation allows participants to work together to reach creative solutions, perhaps involving more than simply the payment of money. Moreover, parties which have worked together in the past may be able to salvage their business relationships.
Responsible
Since the benefits of mediation are proven, counsel should not hesitate to suggest it. In fact, they arguably have a professional responsibility to propose mediation in an effort to reach a prompt settlement and cut costs for their clients. If requested, pursuant to AAA rule M-2, the AAA will assist in persuading an opposing party to mediate. Plan your mediation strategy with care. With proper preparation, the parties have an excellent chance of reaching a prompt and economical resolution.
Editor note: Ms. Claibome is a partner in the firm of Bronson, Bronson & McKinnon LLP in San Francisco, a Fellow in the American College of Construction Lawyers and a mediator with the American Arbitration Association. Founded in 1918, Bronson, Bronson & McKinnon, LLP is one of California's leading law firms. The 113-attorney firm has offices in Los Angeles and San Francisco.
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