Mediation

Mediator: Matthew Swihart, Esq.

To schedule a mediation:
Telephone: 503-747-2705
E-mail: matthew@daylawpc.com

Rates (per party per hour):
2 parties: $125
3 parties: $115
4 or more parties: $100
DAY LAW GROUP, PC, offers two non-adjoining mediation rooms, as well as teleconferencing.

NO CHARGE for travel to any location between the Portland Metro Area and Salem. Travel to all other Oregon/Washington locations is at one-half the applicable hourly rate.

  • About the Mediator

    Mr. Swihart has more than five years’ experience as a mediator and civil litigation/trial attorney representing both plaintiffs and defendants. Prior to becoming an attorney, Mr. Swihart spent a decade working as a Certified Crisis Counselor and Therapist and Mental Health Counselor. Mr. Swihart’s mediation experience includes personal injury, business issues, contracts, construction defect, premises liability, sinkhole, HOA/COA issues, real estate disputes, malpractice, partnership break-ups and corporate dissolutions, foreclosures, and many other types of civil disputes.

    Mr. Swihart believes an active litigator/mediator is preferable as a neutral mediator because a litigator remains knowledgeable of what is occurring in the courts, and can help the attorneys and their clients understand the risks and benefits of a trial versus a negotiated mediation settlement. Mr. Swihart utilizes his courtroom experience to help your clients decide what is best for them.

    Mr. Swihart has the patience and creativity to explore all settlement possibilities. He does not consider an impasse a defeat, because some cases need to be tried; but he works very hard to ensure an agreement or partial agreement cannot be obtained before declaring an impasse.

  • What is Mediation?

    Mediation is a problem-solving process in which a neutral, impartial third person facilitates and encourages the voluntarily and amicable resolution of a dispute. It is an informal, non-adversarial process intended to help the parties reach a mutually-acceptable agreement. Mediation focuses on communication, negotiation, facilitation, and problem-solving, with an emphasis on selfdetermination, the needs and interests of the participants, fairness, procedural flexibility, confidentiality, and full disclosure. Mediation places the control of the dispute into the hands of the parties. Mediation is confidential unless the parties agree otherwise. Written agreements reached by the parties during mediation can be enforced by the courts.

  • The Mediation Process

    When mediation begins, the mediator will describe the mediation process and the role of the
    mediator. Mediation is a consensual process. The mediator is an impartial facilitator without authority to impose a solution. Communications made during mediation are confidential.

    The mediator manages the mediation process and procedures. Any party can communicate
    privately with their attorney during mediation. The mediator may stop the mediation conference at any time and may set times for follow up meetings. If, in the mediator’s judgment, further mediation meetings would be appropriate, productive and likely to yield meaningful results, then mediation can continue beyond a single session.

    If a party fails to appear without good cause at a mediation conference for which he or she had notice, the Court may award mediator and attorney fees and other costs against the party who failed to appear.

    If no agreement is reached during mediation, the mediator will report the lack of agreement to the Court without comment or recommendation. V/ith the consent of the parties, the mediator’s report may identify any pending motions or outstanding legal issues, discovery process, or other action by any party which, if resolved or completed, would facilitate the possibility of a settlement.

    If an agreement is reached on any issue, the agreement must be put in writing, signed by the parties and their attorneys, if any and if present, and submitted to the Court, unless the parties agree otherwise.

  • Mediator’s Role

    The mediator’s role is to reduce obstacles to communication and assist in identifying issues, exploring alternatives, and facilitating voluntary agreements resolving the dispute. However, the ultimate decision-making authority rests solely with the parties. A mediator will not determine who is “right” or “wrong”, or whether a particular agreement is “good” or “bad” for a party.

    The mediator assists the parties in reaching their own resolutions. The mediator cannot negotiate on behalf of any party, give professional advice, or represent any of the parties. Decisions made during mediation are made by the parties alone. The mediator is responsible for assisting them in reaching informed and voluntary decisions while protecting their right of self-determination. The parties are free to consult with the attorney of their choice during mediation.

    The mediator must promote awareness of the interests of persons affected by actual or potential agreements who are not represented at the mediation. In raising awareness of the interests of others, however, the mediator should still respect each party’s right to make their own decisions. The mediator may not advocate a particular position.

    The mediator may not coerce or improperly influence any participant to make a decision or
    unwillingly participate in mediation. The mediator may not intentionally or knowingly
    misrepresent any material fact or circumstance during the mediation. If, for any reason, a party is unable to freely exercise self-determination, the mediator must cancel or postpone the mediation.

    The mediator may provide information which the mediator is qualified by training or experience to provide, consistent with standards of impartiality and preserving the parties’ self determination. However, the mediator may not offer a personal or professional opinion intended to coerce the parties, decide the dispute, or direct a resolution of any issue. The mediator may point out possible outcomes of the case and discuss the merits of a claim or defense. The mediator may not offer a personal or professional opinion as to how the court in which the case has been filed will resolve the dispute.

    When a mediator believes a party does not understand or appreciate how an agreement may
    adversely affect legal rights or obligations, the mediator will advise that party of the right to seek independent legal counsel.

    The mediator must maintain impartiality throughout mediation. Impartiality means freedom from favoritism or bias in word, action, and appearance, and includes a commitment to assist all parties and not any one side. The mediator must be patient, dignified, and courteous during mediation. The mediator must conduct mediation in an even-handed, balanced manner. The mediator must promote mutual respect among the parties throughout the mediation process, and encourage the parties to conduct themselves in a collaborative, non-coercive, and non-adversarial manner.

    The mediator may not mediate a matter which presents a conflict of interest, unless such conflict is voluntarily waived by all parties. A conflict of interest arises when any relationship between the mediator and the parties or the subject matter of the dispute compromises or appears to compromise the mediator’ s impartiality.

  • Confidentiality

    The mediator must maintain confidentiality in all information revealed during mediation except where disclosure is required by law. All oral or written communications in mediation are confidential and inadmissible as evidence in any subsequent legal proceeding, unless all parties agree otherwise. The reason for the rule is to encourage people to talk openly and honestly, without fear of something said in mediation being used against them.

    The mediator is permitted to meet and speak privately with any participant and his or her
    attorney. This usually happens when the mediator or an attorney or participant thinks it will help move the discussion toward a solution. This is called a “caucus.” Information obtained during caucus may not be revealed by the mediator to any other mediation participant without the consent of the disclosing party.

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