What is a Mediator
Gilbert G. Garcia is a Board Certified
Criminal Defense Specialist and a Certified
Mediator.
As a result, he specializes in complex legal
litigation. A trial attorney with 30 years
of experience, he is familiar with a wide
vary of legal solutions available to clients
and highly trained in problem solving.
However, his true strength comes from a
combination of extensive legal experience
with Family, Civil and Criminal law on both
sides. Gilberts insight into people and his
ability to keep things moving forward in a
respectful and positive way allows you to
work towards a win-win solution. The Gilbert
G. Garcia Law Firm specializes in Criminal
Defense - so you never have to worry about a
Conflict of Interest and can be assured that
Garcia will impartially mediate your case.
What is Mediation?
A means of alternative dispute resolution
(ADR), mediation bypasses the adversarial
nature of litigation and allows the parties
themselves to craft their own resolution of
their dispute through direct communication.
Mediation is a process of alternative
dispute resolution in which a neutral third
party, the mediator, assists two or more
parties to help them negotiate an agreement,
with concrete effects, on a matter of common
interest; lato sensu is any activity in
which an agreement on any matter is
researched by an impartial third party,
usually a professional, in the common
interest of the parties involved.
The Gilbert G. Garcia Law Firm focuses on
providing guidance and representation to
individuals seeking to resolve any of a
variety of disputes through
mediation. Contact mediator Gilbert G.
Garcia today to learn more about how he and
his staff can help you.
The alternative to mediation is a lawsuit.
If litigation begins, the process is a legal
battle between lawyers, the result of which
is absolute victory or defeat. In a lawsuit,
it is not uncommon for the amount you pay in
legal fees and litigation expenses to exceed
the money involved in the dispute. Parties
can wait for up to a year before the case
even goes to trial, and appeals can take
many years.
Mediation is much more cost-effective and
takes much less time. It is private,
confidential, and the information you share
in mediation cannot be used against you in
court. Most importantly, the resolution you
obtain through mediation may be far superior
to anything you could obtain through the
courts. This is because in mediation, the
parties remain in control of the outcome
instead of relying on outsiders, such as a
judge, jury, or government agency, to
decide between a very limited number
of solutions.
Mediator Gilbert G. Garcia encourages
clients to use mediation to resolve a wide
variety of disputes. The Mediation
Process:
The mediation format itself is quite
simple with three basic stages:
A joint meeting or fact exchange in which
each side is given the opportunity to
explain its position to the mediator and to
the other side; and
A series of private sessions between the
mediator and each party, called caucuses in
which the mediator works with the parties,
using shuttle diplomacy to analyze the
dispute and help them negotiate a resolution
that works for both;
A final session to draft an agreement and
obtain closure for all involved.
In order for the mediation process to work:
Role of the Mediator
Mediation leaves the decision power totally
and strictly with the parties. The mediator
does not decide what is "fair" or "right,"
does not assess blame nor render an opinion
on the merits or chances of success if the
case were litigated. Rather, the mediator
acts as a catalyst between opposing
interests attempting to bring them together
by defining issues and eliminating obstacles
to communication, while moderating and
guiding the process to avoid confrontation
and ill will. The mediator will, however,
seek concessions from each side during the
mediation process. The mediator is an
invaluable neutral resource to all
participants in the mediation process.
Lawyers, insurance professionals and their
clients use the knowledge and skills of a
neutral mediator to plan negotiation
strategies and develop options for
settlement. The mediator keeps the process
focused and moving forward.
Forbearance from Litigation During
Mediation and Confidentiality of Proceedings
At the outset of a mediation process, the
mediator may well seek agreement from the
parties to forbear from litigation during
the mediation process and to hold everything
that is said in the various sessions
confidential and not deemed an admission or
used against any party in any other
proceeding if mediation fails.
Procedures: Joint Session Followed by
Private Caucuses
Mediation generally begins with a joint
session to set an agenda, define the issues
and ascertain the position and/or concerns
of the parties. This allows the parties to
attack the resolution process either on an
issue-by-issue or group-by-group basis.
The joint session is then followed by a
separate caucus between the mediator and
each individual party or their counsel. This
allows each side to explain and enlarge upon
their position and mediation goals in
confidence. It also gives the mediator an
opportunity to ask questions which may well
serve to create doubt in an advocate's mind
over the validity of a particular position.
Confidential Listener
One form of mediation is known as
"confidential listening" where each side
agrees to reveal their settlement positions
to the mediator in a private caucus so that
it can be ascertained if there is any
overlap or common ground upon which to reach
a settlement. The ground rules must be
agreed upon up front and the mediator, of
course, does not reveal the information
given in the private caucus. The only thing
revealed is whether or not it appears to the
mediator that the parties are within a zone
of settlement.
The Mediation
What actually happens in mediation?
Mediation can be described as an
assisted negotiation. The mediator is
neutral and has no bias against any of the
parties or their positions. He/she is the
facilitator who assists the parties in
reaching an agreement that is acceptable to
them. The agreement is not imposed upon the
parties; it is reached through the
facilitated negotiation process typical of a
mediation proceeding. Judges and arbitrators
make decisions that are imposed on the
parties. Mediators may be requested during
the course of a mediation to provide their
evaluation of the probable outcome of a
dispute were it to be litigated or
arbitrated. If there is such an evaluation,
it is done at the request of the parties but
is not binding upon them unless they request
and agree to it. Binding mediation is not
true mediation because, like a court or
arbitration decision, it is imposed upon the
parties and is not a product of their own
negotiation. The formal procedures found in
court or arbitration proceedings are not
present in mediation proceedings. There are
no rules of evidence or set procedures for
the presentation of facts or positions.
Before mediation commences, the parties and
the mediator agree upon the procedures that
will be followed. It is the party's
proceeding; they can fashion it in any way
that makes sense to them and the mediator.
This absence of formality provides for open
discussion of the issues and allows the free
interchange of ideas. Thus, it becomes
easier to determine the interests of the
parties and to fashion a solution that
satisfies those interests.
The Preliminary Meeting
In most
cases, the mediator will meet with the
parties and/or their representatives prior
to the joint mediation session. Sometimes,
for the sake of convenience, a conference
call substitutes for the initial meeting.
This initial meeting or conference call
provides:
- An introduction to the participants
and the mediation process.
- An opportunity to discuss issues
affecting settlement which are important
for the mediator to know in advance
- An opportunity to determine what
information would be helpful for the
mediator to have at or in advance of the
mediation.
- An appropriate time to discuss any
concerns a party might have about the
mediation and his/her role in the
process.
The Joint Meeting
When all of
the procedures have been agreed to and a
mediation agreement has been signed, the
mediation session or sessions are scheduled.
The mediation normally commences with a
joint conference among all of the parties
and their counsel. The joint session
provides an opportunity for each
participant, either directly or through
counsel, to express their view of the case
to the other participants and how they would
like to approach settlement. The opening
statements are intended to begin the
settlement process, not to be adversarial or
a restatement of positions. This session may
last anywhere from a few minutes to many
hours depending on the number of
participants and the complexity of the
issues. The mediator will let you know in
advance how to prepare for this session.
The Individual Sessions
After
the initial joint meeting, the parties break
up into separate groups and "shuttle
diplomacy" commences. The mediator has a
number of private and confidential meetings
or caucuses with each of the parties and
their representatives to explore interests
and settlement possibilities. He/she
shuttles back and forth between the parties,
carrying various settlement proposals and
communicating the interests and needs of
each participant to the other participants.
The mediator keeps information from the
private sessions confidential unless he/she
is authorized to disclose it.
The mediator will often act as "devil's
advocate" in these sessions to explore how
realistic the positions of the participants
are and what is possible considering the no
agreement alternative. The mediator often
assists parties to prioritize interests and
options for settlement and to assess the
relative strengths and weaknesses of
positions.
Once settlement is achieved, the
mediator will record it for signature
immediately to prevent second thoughts from
destroying a good agreement.
Evaluation by the Mediator
Most mediations commence with the mediator
as a facilitator not an evaluator. An early
evaluation by a mediator often destroys
his/her effectiveness to act as a neutral.
When appropriate, and in consultation with
the participants, mediators will provide a
formal or informal evaluation and analysis
of the case, to focus on strengths and
weaknesses, likely outcome at trial, and
value of the case. Quite often, risk
analysis tools are used in the evaluative
process. A mediator's evaluation is simply
that and nothing more; it is not binding
upon the parties unless the parties agree to
the contrary.
Follow Up
In some cases,
telephone conferences occur following
mediation sessions if no agreement has yet
been reached. Sometimes, further information
is required for the process to continue or
additional people may need to be involved in
the decision making process.
Agreement
The mediator will
work with counsel to finalize a settlement
agreement and determine the procedures
necessary for implementation. The mediator
is available to provide assistance
throughout the process
Summary
If you have any
further questions about the mediation
process, please contact our office. We
welcome your questions.
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