In the 200 plus mediations I have been selected to conduct, here are a few observations and rules that from my experience, will help you find success.
1. The Mediator is a neutral. A mediator’s responsibility is to keep each side talking in a positive and productive manner; to listen; to help each party look at the controversy objectively and to assist counsel and the parties in constructing a resolution.
2. Confidentiality. Pursuant to Michigan Court Rule 2.411(C)(5), 2.412 and MRE 408 and as well as similar federal rules, the mediation process is confidential. It is a settlement discussion and what is said within the mediation does not come into a trial. Parties need to be comfortable in speaking freely and understand that what is said in this process stays in this process.
3. Civility is the key.It is a mediator’s responsibility to maintain civility. I encourage you to participate, to listen and to civilly articulate your position. It is my experience that parties and advocates are most effective in mediation if exchanges are candid but courteous and if each participant is willing to listen to the opposing party’s thoughts and positions.
4. A good summary of the advantages of mediation are the "5 C's:
Control: Retention of control by the Parties over the process and outcome.
Certainty: Certainty of result versus the uncertainty of what a judge or jury may rule or decide.
Creativity: In a mediation settlement, the Parties can create and agree on resolutions they could not receive in a trial due to the restrictions and rules courts operate under. Parties can also agree on matters outside a given case or the Court's power and authority.
Costs: You can control and contain costs and frees that you will incur going forward to a trial, its post-trial proceedings and appeals.
Closure: Successful mediation brings closure to the case and the worry and emotional drain which result from ongoing litigation. Resolution means moving on with your life and your business.