Financial Expert Witness Communication: A Practical Guide to Reporting and Testimony

CHAPTER 19 Alternative Dispute Resolution: Mediation

MEDIATION PROCESS

Mediation is like a tennis match in which the players are blindfolded. Each of the players knows how to win the game, but each does not know where the opponent is on the court. One player strikes the ball over the net in the form of an offer for compromise delivered by a mediator. However, that player does not know where on the court the opponent stands. Is he on the baseline waiting to volley right back with a counteroffer from the mediator? Or, is he at the net waiting to strike down the next offer quickly and definitively and potentially end the negotiation? In either case, swinging away is the strategy to end the dispute.

Mediation is one of the fastest-growing and increasingly popular forms of alternative dispute resolution. Mediation is a process entered into by disputing parties wherein a neutral party facilitates a nonbinding conciliation to resolve a dispute. Although nonbinding, the disputing parties’ usual intent is to use the mediation agreement as the basis for formal settlement and resolution that is binding.

Entering into mediation is typically voluntary; however, it is common for the court to require mediation before trial. A pretrial conference is required under the Federal Rules of Civil Procedure, Rule 26(f), which can include mediation activities. The rule states, in part, that the purpose ...