About Mediation and Other Methods of Dispute Resolution

What is mediation?

Mediation is a process in which a neutral third party (the mediator) assists the parties in resolving their dispute by facilitating negotiation. The mediator has no authority to impose a settlement, and the parties are under no obligation to reach agreement. Mediation proceedings are generally private and confidential.

What is the difference between mediation and arbitration?

Arbitration is a private form of adjudication. It is generally less formal than a trial in court. However, an arbitrator's role is to decide the outcome of the case, and the arbitrator's decision is binding. In mediation, the parties retain control of the outcome. They design their own settlement, which then becomes legally binding.

What is the difference between mediation and collaborative law?

In collaborative law, as in mediation, the parties retain control of the outcome, but the negotiations are conducted without any neutral third-party to facilitate them. The lawyers in a collaborative law case are trained in interest-based negotiation and take responsibility for facilitating the negotiation; many collaborative law attorneys are also experienced mediators.

What is the difference between mediation and case evaluation?

A case evaluator's job is to provide the parties with a prediction of how a judge, jury, or arbitrator would decide the case if it were adjudicated. Mediators will sometimes, if asked by the parties, provide case evaluation.

What are the advantages and disadvantages of each of these processes?

Arbitration, mediation, case evaluation, and collaborative law – all of them are services that BLC provides – have one feature in common: they are all private, non-court methods of dispute resolution.

Arbitration is final and binding – this can be an advantage if you are victorious and a disadvantage if you are not. The arbitration proceedings are also constrained as to subject matter – the arbitrators are willing to listen to only those aspects of the case that are germane to the legal claims presented in the case. There is less opportunity, as compared with collaborative law or mediation, to arrive at a creative outcome, because the arbitrators have the authority to provide only those forms of relief or compensation that are available in court. However, along with those constraints comes the opportunity of the parties to limit, by agreement, the amount of time that the arbitration will take and determine the scheduling, so that they can be confident of a result being reached at a definite time.

Mediation provides the parties with an opportunity to negotiate freely, without the risk that a third party (the mediator) will impose a resolution. The downside, however, if that the parties may feel that mediation was a waste of time and money if it does not result in a settlement. Mediation enables parties who feel they are the victims of wrongdoing to be heard, and allows the parties to "think outside the box," developing creative strategies for settlement. Some litigators fear, however, that they have to reveal too much of their case in mediation, without any assurance that settlement will result.

Collaborative law allows parties to negotiate with a lawyer at their side, but without the imminent risk of the case proceeding to court (with the outcome thereby removed from the control of the parties). The downside is that, if negotiations fail, the parties will be put to the additional expense of hiring new counsel. The upside is that those costs provide a powerful incentive to negotiate effectively.

Case evaluation can be a useful adjunct to mediation or collaborative law, because it enables the parties and their lawyers – on a non-binding basis – to get useful input on "Plan B" (i.e., what would happen if they abandon negotiations and proceed to court). Such input can sometimes help parties resolve an impasse. The downside, however, is that it may short-circuit the process of creative deal-making.

How much does mediation cost?

Most mediators (including those at BLC) charge on an hourly basis for their time. In the Boston area, the cost of mediation services ranges from approximately $100/hour to $800/hour. Some mediators charge on a per diem basis. At BLC, the range of fees for mediation services is $200/hour - $450/hour, depending on who the mediator is. Click here for more specific BLC rates. For low-cost community mediation services, click here and see the directory.

Starting September 1, 2006, an adminstrative fee of $200 per party will be charged for all family mediation and arbitration cases and a fee of $250 per party will be charged for all commercial mediations and arbitration cases.  For arbitrations that go beyond two calendar days of hearing, there is an additional administration fee of $50/day per party.

If I choose mediation, will my rights be protected and, if so, how?

Mediators do not provide legal advice, and therefore in most mediations, the mediator will encourage the parties to seek the advice of counsel before signing any agreement. In business, employment, and non-family mediations, attorneys generally participate in the mediation along with their clients. The mediator protects the parties in mediation by taking responsibility for the fairness of the process. In divorce mediation, the parties usually attend mediation sessions without counsel, but if one party seems to be taking unfair advantage of the other in the mediation, the mediator has the right to withdraw from the mediation, or ask that the parties participate with counsel.