Kelvin Chin, Mediator
What is Mediation?
Mediation is an alternative way to resolve your dispute that does not involve going to court or arbitration. It is a non-binding, consensual process where both parties agree to resolve their dispute using the expertise of a third-party neutral called a mediator to help them settle the matter in conflict. While the process is non-binding, the resulting agreement can be as binding as any agreement that the parties can create on their own. This means that the result can be non-binding, or binding, depending on what the parties want and agree upon. This is different from arbitrations or court proceedings where the results are typically binding regardless of the wishes of the parties.
[The following are some excerpts from an article that Kelvin wrote for a bar association publication when he was Vice President of the American Arbitration Association and a Blue Ribbon Panel Mediator. To see the full article: Click Here.]
Why is mediation a "no-lose" situation?
Mediation has many benefits for both the parties and their attorneys. First, there is the issue of control. From the party's standpoint, they have the most control over the outcome, as compared to arbitration (where the arbitrator controls the outcome) or litigation (where the judge or jury control). Remember, the mediator does not have the power to impose his/her decision on the parties.
Mediation is an excellent process for settling the dispute and preserving relationships. As we have all experienced, litigation, and even arbitration, tends to alienate the opposing party. While mediation does not always leave the parties shaking hands and scheduling golf dates, it is designed to get the parties talking to each other (which they may not have done for years) in a civil manner in order to settle the case.
What if the mediation does not settle? Since mediation is flexible and non-binding, the parties can continue in court or in arbitration. No rights are relinquished. In this sense, it's a "no-lose" situation. You may even create a "win-win" out of it.
What about confidentiality?
Mediations are confidential proceedings. Parties often see the confidentiality as a significant benefit to mediation, since both the process itself as well as any resulting settlement can remain confidential, out of public view.
What issues are mediatable?
Just about anything. Remember, the reason that parties are considering mediation is because their negotiations with each other have failed. So, essentially, any problem or dispute where there is disagreement is worthy of consideration to be mediated.
Disputes where there is a continuing relationship with ongoing interaction after the dispute is resolved are especially good for mediation since both parties are highly motivated to be reasonable in their settlement objectives. But, any dispute or even part of a dispute, is mediatable.
Can mediation be binding?
Yes. The resulting agreement can be made binding via Consent Award or by entering the settlement agreement in the court record if there is litigation ongoing.