Mediation

in

Federal Court

Another way to
resolve conflicts

Mediation is a method of dispute resolution which enables people to reach a mutually agreeable solution to their conflict with the assistance of a neutral mediator.

Mediators are not judges. They make no decisions for the parties. A mediator helps parties realize and explain their needs, clarify issues, explore solutions, and negotiate an agreement. The purpose of mediation is to help parties find a solution that will work for them.

Mediation is different from other settlement techniques in that: (1) the discussion is not limited to the strictly legal issues in the case, but expanded to include other needs and interests of the parties in order to broaden resolution options; (2) the mediator does not decide issues or evaluate the parties’ positions; and (3) because self-determination is fundamental, the parties themselves are actively involved.

Compared to a trial, mediation offers parties:

• lower cost resolution of the dispute
• prompt resolution of the dispute
• private resolution of the dispute
• better understanding between parties
• greater likelihood of compliance with the resolution
• control over the outcome of the dispute

A typical mediation progresses through the following stages:

• Preparing for mediation: Attorneys submit a brief written statement prior to the session
• Initial joint session: The mediator explains the process, hears short presentations from the parties, asks questions about issues and interests
• Separate sessions: The mediator often meets privately with each party to explore interests and concerns, both legal and non-legal
• Subsequent separate and joint sessions: The mediator helps parties develop options and evaluate alternatives
• Completing the process: The mediator will outline the agreement to be written in final form by the attorneys. The agreement may, but need not be submitted to the court, and the case will be dismissed. If no agreement is reached, the case returns to the active court docket.

Mediation has proved useful in many kinds of disputes. In Nebraska the assigned judges will assess the suitability of individual cases considering the comments of counsel and the following factors, among others:

• Whether the parties are in a continuing relationship;
• The extent to which the parties have previously engaged in administrative conciliation or "work out" efforts;
• The extent to which the controversy involves policy or practice issues regarding future action by one of the parties;
• The amount in controversy;
• The relation of the amount in controversy to the expected litigation costs.

Mediations may vary in length from four to eighteen hours. Several sessions may be necessary, depending on the complexity of the case. Sessions will be initially scheduled for four hours, and the parties will determine if and when to continue. The mediation must be completed within 60 days of the date of referral unless a continuance of 30 days is agreed to by the parties.

Fees for cases assigned through the mediation centers will be shared by the parties, not to exceed a total of $100.00 per hour. Parties proceeding in forma pauperis may apply to the court for mediation fees.

Parties selecting private mediators must individually negotiate fees.

Mediators in federal courts are lawyers, sometimes assisted by mediators from other disciplines. Mediators assigned by a state approved mediation center will have completed at least 30 hours of basic mediation training, 15 hours of federal mediation training, and a successful period of supervised apprenticeship.

Within 20 days of the order of referral to mediation, counsel for the parties will contact the mediation center to arrange for the mediation session. The center determines the time, date and place, considering the convenience of all the parties.

In 1991 the Nebraska Legislature passed the Nebraska Dispute Resolution Act to promote and develop the practice and use of mediation in Nebraska. It created the Office of Dispute Resolution in the Administrative Office of the Courts/Probation to oversee the development. Regional non-profit mediation centers have been approved and funded by the Office of Dispute Resolution. A state Advisory Council comprised of representatives from diverse backgrounds (the judiciary, the bar, the church, mental health, education, social services, and others) advises the Office. Funds from state and private sources help support the mediation program.

The Federal Mediation project is a joint effort of the U.S. District Court and the Nebraska Office of Dispute Resolution.