While mediation is a voluntary process the provision provides that “If any party commences an action based on a dispute or claim to which this paragraph applies, without first attempting to resolve the matter through mediation, then that party shall not be entitled to recover attorney’s fees, even if they would otherwise be available to that party in any action.”
It is important to note that there are advantages and disadvantages to every method of dispute resolution. It is therefore, STRONGLY RECOMMENDED THAT YOU SEEK LEGAL COUNSEL’S ADVICE if you have any questions on this subject matter.
In an effort to assist clients and customers in understanding the mediation method of dispute resolution, the following information is being provided. This information is not intended, however, to provide legal advice and/or in any way make an affirmative recommendation with regards to the subject matter. Clients, customers are recommended to obtain legal advice regarding this subject from their legal counsel. The following is a brief list of some, but not all, of the advantages and/or disadvantages, which may be associated with mediation.
Advantages of Mediation
First and foremost, mediation is a voluntary process. There is no trier-of-fact or law who decides which party wins and which party loses, as in an Arbitration or Litigation through the court system. Instead, there is a facilitator. The facilitator works with each of the parties in order to get agreement on a joint resolution of the dispute. In mediation, the parties are in control and no one imposes an award or judgment on them.
Parties to mediation are entitled to select legal counsel representation. In most cases mediation is a less formal method of dispute resolution. The mediation is typically conducted outside the court system and therefore may avoid the strict procedural requirements imposed by the court. The facilitator (mediator) can be a retired judge, lawyer, or businessperson. There are many independent providers of this service. Judicial Arbitration and Mediation Services/Endispute (“JAMS”) is one, the American Arbitration Association (“AAA”) is another. The local telephone directory can provide many others who provide this service as well.
The disputed issues can be resolved very early through mediation in most cases, saving significant cost in terms of time, legal fees and legal costs.
Disadvantages of Mediation
The most significant disadvantage to mediation is that the resolution is dependent upon the parties’ willingness to resolve the dispute. In most mediations each party must give a little in their respective positions to reach a compromised middle ground. If either party is unwilling to be flexible, the mediation in most cases will fail and the parties will move on to Arbitration or Litigation through the court system.
Important Note
Mediation is a provision of the Contract and does not require an affirmative election. If the mediation is successful, the parties typically sign an agreement outlining the points they have agreed on to resolve the dispute.