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What
is Mediation?
Mediation
is an informal, confidential process where a neutral person called
a mediator acts to encourage and facilitate the resolution of a
case without prescribing what it should be. In
contrast to a judge (or an arbitrator) who decides for the parties
how a dispute will be resolved, a mediator (or conciliator) helps
the parties reach their own mutually acceptable and voluntary agreement. The
role of the mediator may include: assisting the parties in identifying
the issues, assessing and reviewing the relative strengths and weaknesses
of their case, determining common interests, fostering joint problem-solving,
exploring settlement alternatives, and finalizing a settlement agreement. Throughout
all Housing Court mediation, the decision-making authority remains
with the parties to the case: unless and until an agreement is reached
and approved by the judge; or, if no agreement is reached, until
one or both parties terminate the mediation process and bring the
case to court for determination by a judge.
Advantages
of Mediation
- Time
It almost always takes less time to mediate
a dispute than it does to try a case, in question-and-answer form,
with objections heard and ruled upon in accordance with the law
of evidence, and with much additional time necessary if there
is prior discovery, an interpreter, a jury trial, or subsequent
appeal. In addition, the parties are free to schedule their own
mediation at their early convenience, rather than waiting for
trial after service of the summons and complaint.
- Confidentiality
All communications in mediation are confidential, and neither
the mediator's work product nor the participants' statements made
in mediation relating to its subject matter can be later disclosed
or admitted into evidence if a trial is held. Private sessions
between a single party and the mediator are particularly confidential,
because they are not even shared with the other party without
permission. The only record of a mediation is the written agreement
reached by the parties.
- Control
Mediation is an opportunity for parties to resolve their own dispute
rather than turning over control of the decisional process to
the judge. And, unlike the judge who is bound to make a decision
on the legal evidence in accordance with the legal rules applicable
to the case, the parties are free to reach settlement terms tailored
to satisfy their own individual interests and needs.
- Satisfaction
Studies have shown that mediation generally results in a high
level of participant satisfaction. And, parties often find the
process useful even if only a partial rather than a complete resolution
of the dispute is achieved, even if the parties are able only
to "winnow away" the unimportant and undisputed issues from the
narrow issues that must be tried.
- Durability
Studies have also shown that individuals are more likely to accept
and abide by their own decisions rather than decisions imposed
on them by others. Therefore, in comparison to adjudicated resolutions,
mediated agreements are more durable, and the compliance rate
is very high.
- Binding
effect
Once approved and signed by the judge, a mediated agreement may
become a judgment or court order with the same legal effect as
if the judge decided the case.
- Final
effect
Agreements for judgment, unlike court-ordered judgments, cannot
be appealed. And like other judgments, agreements for judgment
can be vacated or modified only where there is mutual assent,
or changed unforeseen circumstances, or other unusual events.
- Voluntary
Mediation is a voluntary process, and cases are resolved by mediation
only with the mutual assent of the parties. If, after reasonable
effort, the parties cannot resolve their dispute through mediation,
the right to trial is preserved and the judge will hear and decide
the case.
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