Do You Need a Pre-Mediation Contract?

New Jersey court dockets are jam-packed with cases brought by individuals with disputes. Mediation offers a cost-effective, less time-consuming and more amicable option than taking your issues to court. Additionally, mediation permits the parties involved to maintain control over the outcome. Litigation, on the other hand, puts control into the hands of the judge and jury.

If you are considering mediation, it’s important to enter into the process whole-heartedly. Mediation is often a non-binding process – meaning parties can go through mediation and decide, in the end, to turn down the outcome and take their dispute to court anyway. Even so, if you are going to give mediation a try, by all accounts you should really invest yourself in the process and make the very most of it.

At the end of mediation, if the parties come to an agreement, the parties will work together, with the advice of a mediator, to draft a contract that the parties can sign. (A mediator is also often an attorney, but in the position of mediator the lawyer should not be giving legal advice, nor making decisions about the merits of the case.) Once the parties sign the mediation agreement, the decision will be binding.

However, there is another important document that anyone about to embark on the mediation process should put in place: a pre-mediation contract.

• A pre-mediation contract is a non-binding document that sets forth the terms of the mediation process. This includes how long the mediation process will last and the guidelines for such.
• It should outline how the mediator will be compensated and who will pay for it. In most cases, the amount is included in the contract and the parties agree to split it 50-50.
• The contract should include comments regarding both parties’ “best efforts to reasonably work together in good faith to resolve the dispute through mediation.”
• It should also contain language that acknowledges both parties’ understanding that the mediation will be terminated if either party determines continuing is no longer valuable.

For the most part, one of the best things about mediation is that it allows civilized people to resolve disputes without hostility and confrontation. It’s a cheaper method of dispute resolution, as well. The most important thing to ensure success is to choose a mediator with considerable experience in the specific area of the law you are involved in.

Howard Mendelson, a partner with Davis & Mendelson, has been helping clients resolve conflicts in many practice areas through mediation for many years. Talk to him about mediating your conflict about family issues, including divorce and child custody, real estate challenges, employment concerns, and other. Call today for your initial consultation.