Mediation Service Procedures
Mediation is mandatory in all disputes prior to any arbitration action. Mediation is a form of assisted negotiation in which the parties agree, in good faith, to obtain the help of a neutral third party. The role of the neutral third party is to assist the parties in obtaining a voluntary resolution of matters that are in dispute. The Mediation Service offered by the MBA has been designed to assist homeowners, builders and subcontractors in resolving disputes, both during and after the construction process.
1. The Primary Role of Mediator:
The primary role of the mediator is to assist the parties in settling their disputes through negotiation. The role of the mediator is to help the parties reach an agreement by identifying issues, examining possible basis for agreement and explaining the consequences of failing to settle the disputes. The mediator must identify the strengths and weaknesses of each party’s position. Further, the mediator must try to persuade each party to find a common ground that may serve as a settlement of the items in dispute. Further, the mediator should encourage each party to listen to and accommodate the concerns and interests of the other parties. For these reasons, it is important that the parties remain as open-minded as possible when they enter the mediation process.
It should be noted that the parties might be reluctant to disclose their positions in mediation. However, the mediator must remind the parties that it is in the best interests of the parties to be thorough and truthful in their disclosures to the mediator. The mediator must fairly evaluate the position of each of the parties. Throughout the mediation process, there will be two primary goals of the mediator: (i) information gathering and (ii) evaluation, discussion and persuasion. There will generally be one mediator for the session. In some cases, the MBA may provide two mediators or may provide a technical consultant to assist the mediator. The MBA and the mediator, along with the parties, are required to maintain the confidentiality of the mediation proceedings.
2. The Mediation Process:
The mediation process is less formal than both arbitration and litigation. No formal stenographic, taped or other record of the proceedings is permitted. There is no formal or informal “discovery” (the legal means by which parties obtain information from other parties). Furthermore, no witnesses will be required or permitted at the mediation session without the prior approval of the parties and the mediator. The mediator may, at his or her option, consult one or more experts if the mediator believes that doing so is in the best interests of the mediation proceeding. No fee will be charged for the expert without the respective parties’ prior consent.
There is no mandatory site inspection. However, a site inspection may be made if the mediator determines that it is in the best interests of the mediation proceeding. In many cases, the written documents will be sufficient. The submission of photographs is recommended for those cases where they will enhance the ability of the parties to explain their positions.
3. The Mediation Session:
Most mediations conducted by the Mediation Service will begin with a joint meeting during which the mediator opens the discussions with a description of the process and some basic ground rules. The basic ground rules will include the obligations of the parties and the mediator to maintain the confidentiality of the sessions and all statements made during the sessions. The mediator shall maintain rules of order, shall moderate any discussions, shall help set an agenda and shall work to make sure that all participants feel comfortable discussing the issues. After the opening remarks of the mediator, each party shall make a brief statement of the issues in dispute and shall summarize the relevant facts regarding their positions. The parties may be represented by counsel, but the mediator will encourage direct participation by the parties as a means of fostering a voluntary settlement of the issues. In addition, the parties must expect the mediator to ask questions of all the parties in order to obtain information from the parties about the issues and the respective positions and arguments of the parties.
After the joint meeting of the mediator and the parties, the mediator may ask the parties to go to separate rooms. The purpose of this procedure is to allow the mediator to meet privately with each party and discuss the issues involved in the mediation and freely discuss possible resolutions of the various issues involved. It is anticipated that the mediator will go back and forth between the parties and discuss various settlement proposals among the parties. At some point, the mediator may determine that the parties should reconvene in a joint meeting to discuss the offers directly with the other party for the purpose of entering discussions of the issues and their possible resolution.
The mediation session terminates upon the signing of a Settlement Agreement. The mediation session will also conclude if the mediator determines that the mediation process will not result in a settlement or if the mediator determines that one or both of the parties are not cooperating with the mediator. Upon the conclusion of a mediation session for any reason the proceeding will be referred back to the Intake Committee. In the event of an unsuccessful mediation, the parties are asked by the mediator to sign a Mediation Session Termination Statement.
4. The Settlement Agreement:
In the event a Settlement is reached, the mediator will immediately draft a document to be signed by the parties and the mediator. This document will likely be handwritten. The parties should be aware that once they sign such a document, it becomes a binding contract between the parties. The drafting of such an agreement is a critical part of the mediation process. The Settlement Agreement must be clearly written and must contain each agreement that has been made by the parties. It is important to note that, in some cases, not all of the issues will be resolved. However, the Settlement Agreement should record each and every agreement that was reached during the mediation session.
Statements made during, and documents created as part of the mediation process are confidential. They may not be used as evidence in any subsequent proceedings absent the written agreement of all parties that specifically identifies those items that may later be used as evidence. For these reasons, tape recording or stenographic recording is not permitted. The mediator is obligated to maintain the confidentiality of the proceedings.