Mediation: Voluntary or Mandatory?
VOLUNTARY MEDIATION: Any dispute may be submitted voluntarily when Parties agree to mediation. When mediation is voluntarily entered into, an agreement to mediate is prepared by COMA and executed by the parties.
MANDATORY / COURT ORDERED MEDIATION: If mediation is required by a signed contract, mediation is court ordered, or mediation is legally requirement, initiate mediation by submitting a Mediation Submission Agreement to Colorado Mediators & Arbitrators with an exact copy of the same paperwork (executed fee agreement excepted) served on the responding party in a manner that can be tracked, such as electronic document, certified mail, or private process .
Response to the Filing
The Responding Party’s Response is due within thirty (30) days of service of the mediation submission agreement. The response may be filed by completing a Response to Mediation Filing or by signing an agreement to mediate prepared by COMA. If no response is received after providing proof of service by the Initiating Party to the Responding Party, or if the Responding Party declines mediation, COMA will provide the Initiating Party with a Letter of Non-Response indicating the date the case was filed and any subsequent efforts taken to bring the matter to mediation. This letter may be presented to the court or an arbitrator to demonstrate the Initiating Party’s compliance with the mediation requirement.
Prepare for Mediation
Prepare for Mediation in a similar manner as preparing for arbitration or trial. Bring two copies of all documents that will be referred to in support of your case. Referring to documentation that cannot be examined during mediation is not helpful; documents are examined by the parties prior to or while in attendance in mediation. Documents should include the original contract; emails, texts or letters between the parties; contractor’s bids to correct or complete work that is subject to challenges of breach of contract. Parties may offer supporting research or documentation during negotiations. In mediation for family matters, the Mediator will identify those documents that are necessary for the first session, and homework will be assigned in between sessions. The better prepared you are when walking in to mediation, the better the odds of resolving the dispute.
Expect Resolution, Be Aware of Your Options
Determine ahead of time what your priorities are in settling the matter, while keeping in mind your primary interests. Think about what you are willing to give up in order to get what you want the most. No one gets everything at the end of the day; that would be unfair. Negotiation requires that we ‘take a little and give a little.’ Consider your options if mediation fails to bring agreement, if you are not able to settle. Would you arbitrate or file in court, or litigate? What alternatives to settlement exist?
Decision-Maker Must Attend Mediation
A decision maker with the authority to settle is required for mediation to be successful. If resolving the dispute requires sign-off by your spouse, your boss, a partner, or another principal with authority to settle the matter, that person needs to be in attendance at the bargaining table. Often the best deal is the one that is currently offered and on the table at mediation.
Information is Power, Confidentiality is Prized
Carefully consider your position. Do you have a good understanding of the merits of your case? If an agreement is not achieved, are you aware of the costs of arbitration or litigating in court, and are you prepared to absorb these expenses? It may be beneficial to gain a legal perspective about the case prior to mediation. Also know that in any given case, at any given time, you might have an arbitrator or judge who sees your case from a very different perspective than you. What you just “know” is a slam dunk may turn out to be a complete loss if the court rules against you. You may end up paying not only your own costs but also the attorney costs and court fees to the one who prevails against you in court. It is easy to see why mediation allows the parties the most control over private family, business, and real estate disputes, with the added benefit of privacy. No one relishes the idea of having their battle detailed in a local popular magazine, online, or on the nightly news. The court’s decision is of public record; mediation is confidential.
Pro Se Confidence:
You May be your own best advocate in Mediation or Arbitration. We Want to Hear it from You.
Prepare for Mediation
Mediation is an extremely effective method of resolving disputes. There are several things that enhance the possibility of success.
- Preparation: Come to Mediation as prepared as if you were presenting your case in court, bringing the documents and exhibits that may be helpful to refer to when negotiating your settlement. Sometimes research is also helpful. If you find a resource in a book or online, bring copies with you to refer to when making your point. Accurate information is most powerful when presented at the right time.
- Options for Settlement: Be prepared to offer potential options for settlement. Settling a matter generally requires giving something in exchange for gaining something of roughly equal value that you want. Mediators generate creative options for settlement, often inspired by the priorities of the parties. Write down a list of your own top priorities to refer to during the negotiation so that you keep your top interests in the forefront during your mediation session.
- Convey Clear Ideas: Prepare carefully. If you are nervous, write down your thoughts and practice stating your position clearly and succinctly. Ask a friend to listen to you and give feedback on how you sound, including the energy you project. Negative energy, even when it is justified, reduces your opponent ‘s ability to hear. When possible, try to leave emotion out of the discussion and speak at low volume with a steady voice.
- Commit to Closure: Lack of closure may be due to fear of reaching a less-than-perfect settlement. The truth is that there is no perfect agreement, only a series of trades, one thing for another, with each participant receiving something of value in exchange for giving up something of value or a resulting outcome. Closure of a matter with reasonable terms is a benefit, in & of itself. The emotional toll of a protracted conflict permeates and reduces the joy of living, even in areas of life that are unrelated to the conflict. The unresolved issue is typically a primary focus of life until the matter is settled. Commonly, settlements themselves are the result of “Give a Little, Take a Little.” Perfect? No. Settled? Yes. Settlement offers the freedom to move forward toward a happier tomorrow.
“Give a Little, Take a Little.”
Perfect? No. Settled? Yes.
Settlement offers the freedom to move forward toward a happier tomorrow.