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FAQs About Mediation and Arbitration |
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Copyright 2010. Law Offices of Patrick McCarthy. All rights reserved. |
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McCarthy Mediation Services |
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Bringing the legal and personal perspective into focus. |
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1. What is Mediation? Mediation is a voluntary, non-binding, confidential process in which the parties to a dispute attempt to settle their disagreements with the help of a neutral third party. The focus of the mediation is coming to a fair resolution of the dispute that both sides can accept. Mediation is essentially assisted negotiation.
2. Does the Mediator decide the case? No. In mediation, the parties are in control of the negotiations: if they do not like the proposed settlement, they do not have to agree to it. The mediator does not make a decision for the parties; the mediator facilitates the negotiations and helps the parties come to an agreement, if possible.
3. Is Mediation confidential? Yes, mediation is a strictly confidential proceeding. The proceedings are not admissible in court. All the discussions are confidential. Each party signs a Confidentiality Agreement at the beginning of the mediation session. McCarthy Mediation Confidentiality Agreement Also, during the Mediation each side meets separately with the mediator. These private discussions can be held confidential from the other side if desired, thus encouraging a frank exchange of ideas.
4. How long does Mediation take? Many disputes can be resolved in a half-day mediation session. Sometimes a full day is necessary. In more complicated situations, it may be helpful to have several sessions separated by some time so that the parties have time to think over the situation.
5. Who attends the Mediation? All the main parties to the disagreement attend the mediation. If the parties are represented by counsel, their attorneys also attend.
6. What are the benefits of Mediation? Mediation is cooperative rather than confrontational.
Mediation can save a great deal of time and money. It is far more economical to resolve a problem through mediation than through the court system. All the parties avoid the time, expense, and risks of protracted discovery, depositions, and trial.
In mediation, the parties maintain control of the negotiations. The dispute is not decided by a judge; the parties themselves come to an agreement with the help of the mediator. All parties have the option of accepting or rejecting the agreement in mediation.
Mediation provides a safe, constructive environment where all parties’ positions can be heard.
Using a neutral mediator helps the parties focus on the issues that need to be settled, rather than on emotions. The parties often can make progress if they have an experienced mediator to help them engage in a constructive dialogue.
The confidentiality of mediation also provides the parties protection from the potential embarrassment of the public court system.
Mediation can help parties settle issues before their problem becomes bigger. Mediation can be used at any stage of a dispute. Mediation is an effective tool to help settle an issue before a lawsuit is filed. Mediation can also be used at any stage of court proceedings to save the time, expense and risk of proceeding through discovery, depositions and trial.
Mediation strives to find a win-win solution to problems, where everyone’s issues are heard, and a fair solution is achieved.
In Mediation, an experienced, neutral third party hears all sides. This helps the parties gain a realistic perspective on the dispute. The experienced mediator’s perspective is valuable in evaluating how the case might develop in the court system.
The mediator can sometimes make suggestions for settlement which have not occurred to the parties themselves.
7. What is Arbitration? Arbitration is a form of trial in which both sides present evidence under oath. The Arbitrator evaluates the evidence and reaches a decision that becomes the judgment of the case. If the Arbitration is non-binding, the parties can reject the decision and continue to litigate the case in court. In binding Arbitration, the decision is generally final.
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7041 Koll Center Parkway Suite 160 Pleasanton, CA 94566 (925) 460-6000 Fax (925) 460-6292 |