Serial Mediation Process
Niklas Terki
Mediation offers a flexible alternative to arbitration, and can be initiated at any time before or even during the arbitration process. Most mediations take about three months to complete. There are typically six stages of the mediation process:
If a dispute is already in arbitration, one or both parties can contact their arbitration administrator about their desire to mediate. FINRA staff will contact the other side to see if they agree to mediate the dispute. If desired, FINRA staff will see if the other party is interested in mediation without revealing any interest by the opposing party. If the parties agree to mediate, the case will proceed with mediator selection. Often times, the parties submit their agreement to mediate within a postponement notice. However, the arbitration and mediation processes may proceed on a parallel track.
Upon agreement, FINRA staff will begin by putting together a list of FINRA-approved mediators and scheduling the session. Both parties will also be introduced, usually in writing, to their Mediation Administrator, and find out how to contact staff.
After conferring with the parties, FINRA will send a list of proposed mediators from its roster. The mediators on the list may have subject-matter expertise or other experience that is consistent with the parties' needs in the case.
FINRA will include a disclosure report for each mediator on the provided list. The disclosure report contains the mediator's rate (hourly fee or flat fee), any travel or cancellation policies, educational and employment experience, type of cases mediated, the number of cases mediated and how many settled, all of which help the parties select the mediator who best meets their needs.
The parties may select their mediator from the initial list FINRA sends or may ask for additional lists. The parties may also agree to mediate with a FINRA-approved mediator by advising the mediation staff at any time during the process.
The mediation may be held in person, telephonically or by video conference. FINRA staff is available to help schedule the mediation date and coordinate the location and format with the parties and mediator. The parties also may schedule the mediation directly with the mediator and provide the necessary information to FINRA staff. Mediations usually take one day, and the date and format are agreed upon by all participants.
Unlike in arbitration, mediators can speak directly to and privately with the parties. Therefore, prior to the mediation session, the mediator may choose to speak with the parties individually to become knowledgeable about the details about the case. The mediator also may request a summary or history of the dispute, arbitration pleadings (if available) or other documents that help tell the story of the dispute.
Generally, after the opening statement, the mediator will move the parties into individual caucuses, which are private meetings with one party at a time. The mediator will ask questions, speak at length about the issues at hand, and carry messages, such as offers, counter offers, demands or proposals between the parties to help facilitate a resolution. The mediator will speak with the parties candidly about settlement expectations and will help the parties see the strengths and weaknesses of the case.
A settlement occurs if the parties resolve their dispute.
When the parties reach an agreement, they are responsible for recording the settlement in writing. The mediator may help the parties determine who is documenting the terms of the settlement, even if it is handwritten, and have the parties execute the agreement. This agreement may be finalized formally at a later date.
Since mediation is non-binding, there are times when the parties decide not to settle. Or they resolve only part of the case in mediation by narrowing some of the issues. In those instances, claimants maintain their right to file an arbitration claim or proceed with an existing arbitration case.
Regardless of whether the parties agree to settle, feedback from users of FINRA's mediation forum indicates that their mediation experience has prepared them to pursue or continue in arbitration because they have a better understanding of their case.
Each side might have lawyers, co-workers, and/or family members on their team, depending on the context. Imagine a consulting firm and a printing company have decided to hire a former judge with about 10years of experience as a mediator.
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Because disputing sides often have difficulty listening to each other, mediators act like translators, repeating back what they have heard and asking for clarification when necessary. If parties reach an impasse, mediators diagnose the obstacles that lie in their path and work to get the discussion back on track.
The promise of confidentiality can encourage disputants to share new information about their interests and concerns. In caucuses with both sides of the IT training debate, the mediator learns that the printing company is in financial distress.
Suppose that your caucuses with the mediator have led everyone to understand that your firm is primarily concerned about maintaining its reputation, while the printing company is worried about paying its bills.
At least in the arena of mediating employment disputes, it is questionable as to whether a joint session works at any point in the mediation process. Initially, when starting the mediation process, I feel out both sides for their sense of whether a joint session will be useful. In any event, I spend some time at the beginning describing the procedure and getting a clear picture of where the parties stand. Then, with hope, I move forward soon into productive talks in separate caucuses.
The courts of this country should not be the place where resolution of disputes begins. They should be the place where disputes end after alternative methods of resolving disputes have been considered and tried.
Mediation is familiar to most people as a means of resolving labormanagement and international disputes, but it also has been used to settle contract, interpersonal, human resource, and EEO conflicts. Mediation involves the intervention of a third person, or mediator, into a dispute to assist the parties in negotiating jointly acceptable resolution of issues in conflict. The mediator meets with the parties at a neutral location where the parties can discuss the dispute and explore a variety of solutions. Each party is encouraged to be open and candid about his/her point of view. The mediator, as a neutral third party, can view the dispute objectively and assist the parties in considering alternatives and options that they might not have considered. The mediator is neutral in that he or she does not stand to personally benefit from the terms of the settlement, and is impartial in that he or she does not have a preconceived bias about how the conflict should be resolved.
The mediation session is private and confidential. Matters unique to the mediation discussion have been held by Federal courts to be privileged and inadmissible in any adversarial administrative or court proceeding with the exception of certain issues such as fraud, waste and abuse, or criminal activity. If a settlement was not resolved during a mediation session, and the dispute was litigated in any administrative or judicial proceeding, neither the mediator nor his/her notes can be subpoenaed by either party.
A trained mediator from OAH is always present at the mediation to help the parties solve the issues. The mediators are judges. However, the judge who is the mediator in a case will not be the judge at the hearing if the case does not settle.
The mediator is a neutral participant at the mediation. That means that the mediator does not take sides. The mediator is not there to tell the parties what to do. Rather, the mediator is like a guide. The mediator tries to help the parties come to an agreement by asking questions about the case. The mediator may also suggest possible ways to solve the problems in the due process complaint. Neither side has to follow those suggestions. Only the parties decide if they want to agree to settle the case.
The OAH Special Education Division conducts mediations by videoconference and telephone. The information in this section provides resources enabling parties to fully participate in this new process. As of July 5, 2022, OAH uses Zoom to conduct its mediations. If you are unfamiliar with Zoom you may find the following helpful:
Participants may have trouble joining the Prehearing Conference or Hearing if they do not have the most updated version of the Zoom application or their web browser is not up to date. For instructions on identifying your version of the Zoom application, and to update to the most current version of the Zoom application, please visit New! Get Automatic Updates in the Zoom Client Zoom. You may also access "New! Get Automatic Updates in the Zoom Client" by copying and pasting the following URL into your browser: -automatic-updates-in-the-zoom- client/
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