Marc Alan Fong, Esq.
2161 Harbor Bay Parkway
Alameda, CA 94502
Q: WHAT IS MEDIATION?
In mediation an independent and neutral mediator assists parties in reaching their own decision. The goal of mediation is a satisfactory resolution of the issues through an agreement created by the parties. Mediation is sometimes referred to as “super negotiation.”
Q: WHAT HAPPENS AT MEDIATION?
A mediation session involves a discussion of the dispute by the parties in an informal setting. Typically the session is attended by the mediator, the parties and their counsel, if they have retained any. The process is informal and confidential. No record is made of the proceedings and statements made in the mediation are not admissible in any court proceedings.
Q: WILL I HAVE TO GIVE UP MY CASE IF I GO TO MEDIATION?
Mediation is a voluntary, non-binding process. The mediator has no authority to make decisions or force the parties to accept any terms. The mediator does not give legal advice. Instead, the mediator’s role is to help the parties identify obstacles to settlement and develop strategies to overcome those obstacles. Generally a mediated settlement resolves the entire dispute between the parties and court proceedings are not necessary.
Q: WILL I GET TO TELL MY SIDE AT THE MEDIATION?
Mediation provides a safe environment for serious negotiations. The parties have equal opportunity to educate and influence their opponents. The mediator assists each party in analyzing the risks and benefits of their position, and in defining each party’s interest.
Q: CAN MEDIATION GIVE ME ANYTHING MORE THAN I COULD GET BY
GOING TO TRIAL?
Unlike trial, in which the parties are in opposition, mediation focuses on cooperation by all the parties. It can bring an end to the dispute more quickly and inexpensively than going to trial, and the outcome can be made confidential. Because the resolution is created by the parties, rather than a judge or jury, the settlement can provide for more than just the payment of money. The agreement will meet the parties’ specific interests. While mediating is hard work, you may leave feeling that the process has given you positive closure to the dispute.
Q: DOES MEDIATION WORK ALL THE TIME?
Mediation presents an opportunity for the parties to create their own resolution. The American Arbitration Association reports over 85% of all mediations result in settlement.
Q: WHAT IS ARBITRATION?
In arbitration an independent and neutral arbitrator listens to the evidence of the parties and makes an award. The arbitrator may be an attorney, or an expert in the subject of the dispute. Generally the parties have agreed that the award of the arbitrator will be binding on the parties.
Q: WHAT HAPPENS AT ARBITRATION?
Arbitrations are generally held in a conference room, but the process is more formal than mediation. The arbitrator will swear witnesses who will testify in response to questions by the parties or counsel, if they have retained counsel. The arbitrator will also review the documents provided by the parties. The parties may decide to have the hearings recorded by a court reporter so that a transcript is created. At the close of the hearing, the arbitrator will review the evidence and make an award, setting out how the parties are to comply and the timeframe for compliance. Arbitrations, like mediations, are not public.
Q: WILL I HAVE TO GIVE UP MY CASE IF I GO TO ARBITRATION?
Arbitrations in almost all cases take the place of a court process.
Q: WILL I GET TO TELL MY SIDE IF I GO TO ARBITRATION?
While the arbitration process is more formal than mediation, it is less formal than a court proceeding. The parties are given the opportunity to support their position through testimony and document, without the technical evidentiary rules that control court trials.
Q: CAN ARBITRATION GIVE ME ANYTHING MORE THAN I COULD GET BY GOING TO TRIAL?
Arbitrations are scheduled by the parties and the arbitrator, and take place on the scheduled date which is generally much sooner than a matter can be heard in a court trial. Because arbitrations are less formal, they are also less expensive. The parties may also agree to place certain limits on the arbitrator’s award which reduces the parties’ risk at the arbitration.
Q: DO I NEED COUNSEL FOR AN ARBITRATION?
Parties are never required to have counsel. However, the arbitrator cannot give you legal advice about presenting your case, and the arbitrator is required to follow the law in making the award. Because the arbitrator will be making a binding award, many parties feel counsel will be better able to present their position.