What is Pre-Suit Mediation?

Question 1 

Mediation is regarded as an alternative approach to dispute resolution. Courts can sometimes be tedious and burdened with many cases they are struggling to complete. Therefore, pre-suit mediation is a process where the plaintiff and the defendant settle problems speedily with the help of an unbiased third party (Moore, 2014). Proponents and critics of the method have raised their voice regarding the position of the method in conflict resolution. With regards to the advantages, pre-suit mediation occurs relatively swiftly compared to litigation and can take as short as two days. Secondly, it draws its benefits from the fact that it is a flexible process where parties have a wide array of outcomes, a luxury that cannot be achieved in litigation. The mediation process allowseach party to hear the opposing viewpoints in a non-confrontational manner. Most fundamentally, it is a confidential process where all matters discussed are regarded as “without prejudice” hence cannot be used as evidence in another tribunal. 

However, critics are primarily concerned with the enforceability of the reached agreement and also the fact that the mediation process can be complicated especially when one of the parties is withholding information. A lack of cooperation from either of the parties can translate into a significant waste of time, money, and effort. Also, either party can decide to withdraw from the pre-suit mediation thereby rendering it dysfunctional. Despite the disadvantages, with guided rules and an unbiased third party, the parties can achieve a resolution from an out-of-court mediation. The large pool of solutions and the process of engagement mean that the mediator will create an environment where people are less hostile to one another. Overall, mediation is less costly compared to traditional litigation. According to the National Conflict Resolution Center (NCRC), the mediation costs range between $3,000 and $8,000 from start to finish where litigation, on the other hand, can go up to $100,000 (Singer, 2018). 

Question 2 

No, the boss does not have to be there in case she does not have any interest in the mediation process. It, therefore, means that she can choose to have an attorney represent her. The role of the attorneys in the mediation stipulates that "a party who chooses to resolve a dispute through mediation may or may not be represented by a lawyer at any point in the process" (Nolan-Haley, 2013). In most situations, however, the mediation process does not require the presence of the attorney. However, if the lawyer has enough experience in mediation and further understands the legal issue in question correctly, they can represent either of the party. The lawyer can significantly assist the boss throughout the mediation process. Their role includes assisting the party they represent to make informed and critical decisions regarding the mediation process and further encourages them to take responsibility for the conflict resolution in tandem with the mediation principles. 

The attorney will report back to the boss explaining to her the nature of the mediation process and further inform her of how the mediation process complements the court process. However, the boss must remain keen to pick the lawyer with the appropriate experience in the particular conflict and most fundamentally, an appropriate training. The boss must demonstrate awareness of the conflict of interest that comes with the attorney advocate representation. The boss must ensure that the person representing them as an attorney does not have any blood relation, friendship, or association whatsoever with the other partner in the negotiation table. 

Question 3 

Before the company makes the decision whether to participate or not in the mediation process, the boss show awareness of specific ground rules. First, each party has an important role to play in the mediation process. If each participant fails to show commitment, the mediation will crumble. "A party to a dispute or lawsuit needs to participate fully in the mediation process, preferably even before the mediation process begins" (Moore, 2014). Therefore, it is imperative for the company to fully participate in the process of mediation from the point of preparation throughout until a solution is reached. A party will have to listen carefully what the other has to offer and respond appropriately. Therefore, it would be a gross lack of commitment, desire, and goodwill if the company attended the mediation process, sat down, and refused to provide any input whatsoever. As a rule of the thumb, if the party representing the company in a negotiation process is an individual, they must be physically present. Therefore, the boss must understand that physical presence and verbal negotiation are the first steps towards acquiring a binding solution. 

In a bid to attain justice, it remains fundamental to agree on the terms and conditions which can only be achieved when individuals talk. Disputes can at times be fuelled by a wide array of emotions including pain, anger, and a strong desire for justice. Therefore, it would be foolhardy for the parties, the boss included, to attend the negotiation process and show a systematic lack of effort to resolve the situation as this might create a hostile environment. The more the parties invest more energy and time in the mediation process, the more the entire process gains the much-needed impetus to gain solutions that will ultimately solve the problem for the benefit of both participants. 

Question 4 

Confidentiality is a significantly important part of the mediation process. The participants in the mediation process must remain keen to honor this provision to ensure that they can talk openly and freely during their deliberations. Several risks exist regarding the information that might be disclosed. First, it remains crucial to appreciate that a mediation significantly differs from the normal court process. During a mediation process, individuals are asked to negotiate with an open mind and good faith. The first risk that comes with a lack of confidentiality is that a lack of disclosure might mean that the appointed mediator will be called upon to testify in future court proceedings. It should be noted that the mediator is supposed to remain neutral throughout the mediation process (Nolan-Haley, 2013). However, once presented before the court, they might be asked a litany of questions that compromise this neutrality. 

The mediator must at all times remain impartial in fact and perception. Also, as earlier intimated, confidentiality should be upheld to ensure that the parties express themselves and brainstorm solutions in a bid to solve the problem. Research has shown that "this is the only way to facilitate an open dialogue and develop a safe environment for authentic expression" (Singer, 2018). Therefore, when information leaks, there would be a loss of faith both on the part of the mediator and the parties. As such, this thus acts as a signal that the options outlined in the agreement might not be honored due to a lack of goodwill. The boss should, however, note that whenever the mediation fails, the other party is prohibited by the state and federal laws to use the information acquired during the negotiation process in a trial. However, such confidentiality laws do not mean that the information will never be utilized. It only emphasizes that the source of information must emanate from elsewhere other than the mediation. 

References 

Moore, C. W. (2014). The mediation process: Practical strategies for resolving conflict. John Wiley & Sons. 

Nolan-Haley, J. (2013). Alternative Dispute Resolution in a Nutshell, 4th. West Academic. 

Singer, L. (2018). Settling disputes: Conflict resolution in business, families, and the legal system. Routledge.