Starting Your Case With a Mediator or Mediation Service

To initiate your case with a mediator or mediation service, you will probably have to fill out a one- or two-page “submission” or “intake” form. Some services may charge you a filing fee to open and begin processing your case; others charge no fee until everyone has agreed to mediate and a date for the mediation is scheduled.

1. Completing the Submission Form

When you call a mediation service, you will typically be asked to com­plete a short submission form, giving some basic information about your dispute. You can ask the office to mail the form to you; some offices will just take your information over the phone and fill in the form them­selves. Either way, it shouldn’t take more than a few minutes to com­plete. (If you call an independent mediator, the initial contact may be less bureaucratic.)

The submission form requests basic information about your case, such as the names and addresses of the parties and attorneys (if any), what type of case it is, whether a lawsuit has been filed, and what solution you are seeking. The mediation service may communicate the information you put on the form to the other party, as part of its efforts to convince the other party to mediate.

WHAT'S IN A NAME?—"CLAIMANTS" AND "RESPONDENTS"

Some mediation services—particularly community mediation centers— call the person who submits a case the “claimant” and the other person the “respondent.” This can create a problem when both sides feel they have something to complain about. Some services avoid the term “claimant” by calling the party that initiated the case the “submitting party” or the “initiator,” and some simply call the parties “Party 1” and “Party 2.”

2. Describing Your Dispute

To avoid revealing any sensitive information to the other party (and to avoid saying anything that would make him reluctant to mediate), it is usually best to describe your dispute in a fairly general and noninflam­matory way.

a. The Nature of the Dispute

Most forms include a question like, “What is the nature of your dispute?” Your response should be brief and general. For example, you might write “My insurance company has refused to pay for injuries I suffered in a car accident,” “My employer put me on probation after I complained about unsafe working conditions,” or “My neighbor and I cannot agree on who should pay to repair the fence between our properties.”

When describing your dispute, it’s best to use ordinary—not legal— words. Remember, the mediation service’s case might quote you to the other side. For example, if you have a beef with your landscape gardener because the shrubbery that was guaranteed for three years died after three months, it’s better to describe this as “dispute over shrubbery plantings” than as “breach of contract.” Plain words are not only easier to understand; they are also less likely to push the other side away from the bargaining table and into a lawyer’s office.

b. Desired Remedy

When describing the result you wish to achieve, it’s best to be straight­forward. These statements are all fine, assuming the dispute involves money or property:

• “Return of the following property” (include a list with clear descriptions)

• “Fair payment for my injuries suffered on 1/7/04,” or

• “My job at Racafrax International back.”

If your case is about the way someone is behaving toward you or your family, it’s particularly important to be diplomatic as not to anger or affront the other person. For example, if you are complaining about a neighbor who drives dangerously on your street, you might say “Remedy sought: Mr. Adams to drive carefully on Hickory St.” However, it would be a mistake to say, “that Mr. Adams stop speeding [or driving recklessly],..so he doesn’t run over my kids.”

Perhaps it will help you modulate your tone if you imagine yourself as Mr.

c. Amount of Money Sought

How much money, if any, do you really want the other side to pay you? Unlike in litigation (and sometimes even negotiation), where it’s com­mon to establish a “strong bargaining position” by claiming a much higher amount than you really want—sometimes by a factor of ten or more—in mediation, it’s usually wise to claim an amount much closer to what you really want. Remember, your first hurdle is to get the other side to agree to mediate. If a demand for money appears too outrageous, it’s likely to drive the other person away.

Some people worry that offering to compromise in mediation could jeopardize their right to go for the jackpot in court if mediation fails. However, because efforts to settle a case (including statements made in mediation) are not admissible in court, your efforts to be reasonable won’t come back to haunt you.

d. Additional Parties

The form may ask if there are additional parties whom the mediation service should contact. This is an important question. To be successful, mediation needs to be inclusive—that is, everyone with a significant stake in the outcome of the dispute should be invited to participate. An agreement that excludes an important stakeholder will be of little value if that person is in a position to undermine it. For example, assume you are a real estate agent who lost a commission when your clients backed out of a signed purchase offer after cracks were found in the home’s chimney, even though your clients’ offer was not contingent on an inspection. Legally, your clients might be obligated to buy the house. However, to avoid cost, delays, and damage to your client relationship, you instead would like to go to mediation to see if the deal can be put back together—maybe by you, the seller’s agent, and the sellers all contributing some money towards repairing the chimney.

e. Type of Dispute Resolution

The intake form may also ask what type of dispute resolution services or help you want (some mediation services offer many options—see Chapter 1, Section D, for more information). Indicating a preference for one type of dispute resolution does not prevent you from changing your mind later; however, your initial preference may determine what the mediation service says in its introductory letter to your opponent.

WHAT IS "BINDING" MEDIATION?

Mediation is, by definition, nonbinding. However, some mediation services may ask if you want “binding” or “nonbinding” mediation. What they mean is this: If you settle your case in mediation, do you want the mediator to write the terms of the settlement in the form of a legally binding contract that will be enforceable in court? Otherwise, the settlement just expresses the parties’ intentions—and it is not legally enforceable.

Some mediation services offer this option; others do not. If it’s available, you should choose the binding option. If the other party reneges on the settlement, you can go to court to have the agreement enforced as a contract. (For more on writing your mediation agreement as a binding contract, see Chapter 7.)

D.