Litigation can be time-consuming and costly. In addition, Arizona courts currently have a significant backlog of cases. As a result, alternative dispute resolution (ADR) is required in Arizona for all parties to a dispute. Arbitration is one form of ADR, but it too can be expensive and take a significant amount of time. 

Another option is mediation. This is one of the fastest-growing forms of ADR and is appropriate for resolving many types of business disputes in Arizona over issues such as contracts, disagreements among limited liability company members, compensation, etc. Many Arizona courts require parties to mediate their disputes before litigating in an effort to resolve some or all of the issues pre-trial, thus limiting the burden on the court system.

What is Mediation?

Mediation involves the parties to a dispute meeting with a neutral third party who acts as an intermediary between them. The mediator’s job is to help the parties come to an agreement to resolve the entire dispute or as many elements of the dispute as possible, amicably and in a way that maximizes benefits for all parties. As a result, it is best to mediate a dispute as early as circumstances allow.

Everything that is said during the mediation is confidential and cannot be used in court. The mediator cannot be a witness in the court proceeding. Further, anything that either party tells the mediator during the mediation cannot be disclosed to the opposing party unless the party gives the mediator permission to disclose it. 

This helps each party be able to fully disclose their position to the mediator, including a candid discussion of the strengths and weaknesses of their position, and get the mediator’s assessment without divulging that to the opposing party.    

Prior to mediation, the parties provide the mediator with a confidential summary of the facts, legal positions, and past negotiations for the mediator to review. This helps the mediator understand the parties’ position prior to the actual mediation so that the parties can make the most out of everyone’s time during the mediation.   

During the first meeting, which is often a joint session, the mediator explains the process and asks the parties to sign a confidentiality agreement. The parties may stay in the same room, but generally, the mediator will put them in separate rooms to discuss possible resolutions with each other in a more candid manner. The mediator then helps the parties understand each other’s views and hopefully reach a binding agreement. If the parties come to an agreement, a written agreement is drafted and signed before the parties leave.

If the parties fail to reach an agreement, all mediation discussions and materials are confidential, and evidence of them—along with a draft mediation agreement, if one was produced—will not be admissible in a subsequent court or other adversarial proceeding unless the parties agree otherwise or disclosure is required by statute.

If mediation is ordered by a court, there usually is no cost to the parties unless they choose a private mediator. The cost of private mediation can range anywhere from $150 to $500 per hour or more. It is difficult to predict how long mediation will take, as this depends on the complexity of the issues and how far apart the parties are initially. It may take only a couple of hours if it is clear that the parties will not be able to reach a resolution, or it can go into the late hours of the night if the parties are making progress or have an agreement and are putting together a written settlement agreement.  

How Should I Prepare for a Mediation?

To prepare for a mediation, take the following steps:

Choose the Right Mediator

Select a mediator who is known for excellent mediation skills and has expertise in the subject matter(s) underlying the dispute. Also, choose someone whose mediation style is appealing to all parties. This may involve interviewing several potential mediators until you find the one who is most appropriate.

Decide What Information Should Be Exchanged

All parties should fully understand what claims and defenses will be alleged and what they will be based on. This may require exchanging relevant information so that there are no surprises during the mediation that make it more difficult for the parties to reach an agreement. The mediator should facilitate this exchange of information before the first meeting.

Determine Your Legal Arguments and Settlement Positions

Develop arguments supporting your position so that you are prepared in advance. As part of this process, think of how the other party or parties will benefit from the settlement you plan to propose. Try to come up with creative solutions that all parties will find satisfactory.

Draft an “Opening Statement” (Not Needed in Every Circumstance)

Prepare to give this statement during the initial joint session of the mediation, if there will be one. This will allow each side to present their cases directly to the other without having to go through counsel, which can help clarify the parties’ positions.

Prepare a Litigation Risk Assessment

A litigation risk assessment compares the likely outcome of mediation vs. the likely outcome of arbitration or trial, which will help you develop your negotiating position for the mediation. Because it is difficult to assess the strength of your own case objectively, consider having a third party prepare the risk assessment, especially if a large amount of money is at stake. 

Prepare a Negotiating Strategy

In addition to the desired final outcome, decide what your starting position will be. How willing are you to make the first move toward the other side’s position? What will that move be? How candid you will be with the mediator during negotiations? At the same time, be prepared to adjust your strategy during the mediation as circumstances warrant.

Contact Counxel Legal Firm

If you would like to talk to an attorney about resolving a matter through mediation, contact Counxel Legal Firm at 480-536-6122 or at intake@wordpress-457010-3165254.cloudwaysapps.com. 

This article is intended for informational purposes only and does not constitute legal advice for your specific situation. Use of and access to this article does not create an attorney-client relationship between you and Counxel Legal Firm. Please contact intake@wordpress-457010-3165254.cloudwaysapps.com or 480-536-6122 to request specific information for your situation.

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