Mediation: What, When, and Why

Going to court is an expensive and time consuming way to resolve a dispute. There are alternative dispute resolution methods where parties can resolve differences without a judge making the final decision. The most common options include:

• Mediation
• Arbitration

Alternative dispute resolution methods are increasingly popular methods of settling legal matters. These options give the involved parties the chance to settle the dispute without the expense of litigation or the exhaustive time spent waiting for a court date. Mediation is an alternative dispute resolution method that shifts the venue from the court system to an informal proceeding that allows the disputing parties to negotiate and find a mutually agreeable resolution to their conflict. Most mediation sessions are conducted in a law office instead of in a courthouse. Each party stays in their respective offices and the mediator travels back and forth helping the parties move towards a settlement. The parties do not have to prove their case or respond to questions like a deposition or an arbitration. In a mediation for a personal injury lawsuit, the mediation is simply about dollars and cents. Accident victims are typically relieved that they do not have to answer questions or try and prove their case, but they often find it difficult to put a dollar value on their injuries.

Advantages and Disadvantages

There are a number of advantages to using mediation rather than judicial proceedings:

• Using mediation will save money. Although a mediator may charge a fee comparable to an attorney, going through mediation generally settles faster and bypasses court expenses like filing, paying expert witnesses, etc… Court cases can take months or even years, while mediation can find a resolution in a matter of hours. Less time equals less money on hourly fees.
• Mediation gives the parties control over the resolution. In court cases, the resolution is obtained by a judge or jury. In mediation, the parties maintain control of the outcome and nobody else can force them to accept a decision against their will.
• Mediation is confidential. These cases are generally non-public and the court cannot force a mediator to testify on the dealings or progress of mediation.
• Since mediation requires the parties to come to an agreeable resolution, compliance with the agreement is typically very high. The mediated agreement can also be fully enforced by the court.
• Mediators are trained to work in difficult situations to guide the parties involved through the process. The mediator is able to give creative solutions allowing for a mutual agreement that works well for both.

However, there are some disadvantages of mediation:

• Mediation does not always end with a settlement agreement. Parties involved can go through mediation only to find out that one or both of them cannot find any middle ground on which to make an agreement.
• Mediation has no formal discovery process. If one of the parties to a dispute cannot fully develop their case without first receiving information from the other party, there is no way to compel release of that information. The party seeking disclosure must rely instead on the other party’s good faith, which may or may not be enough.
• Mediation is not the most ideal forum to get to the truth. Courts have ways to get people to testify or produce evidence that may not be available for mediators.

Can Mediation Be Mandatory?

Some courts in the United States make participation in some form of alternative dispute resolution mandatory for most civil actions; mediation is preferred most by the courts. The idea behind requiring some disputes to be handled through mediation is that settlements are more likely to occur sooner. The primary reasoning behind this idea is inertia. Once the parties are forced to sit down and look through their files at the same time, the case is likely to settle—rather than taking its time in court. If the parties want to settle, then this imposition does no harm. However, this imposition does not take well to cases that are not suited for mediation. These cases could involve parties that are not looking to negotiate and one party has the time or resources to continue on the mediation process until the other party gives up. In essence, there are some parties for whom settling isn’t an option so mediation could potentially waste time and money.

Who Can Be a Mediator?

The mediator is able to negotiate between the parties to find a mutually agreeable resolution in the cases brought to them. The requirements to become a mediator vary between states. Mediators are usually lawyers, social workers, psychologists or other professionals who have formal training in mediation. Certification is always required. Parties may select a mediator who is knowledgeable in the areas of controversy that are the subject of the dispute. Mediators can often give each side an expert, yet unbiased, view of the strengths and weaknesses of the case overall. They may also discuss with the parties what might happen if the dispute does not settle.

Who Else is Involved?

Seeking an attorney, who is experienced in mediation, to represent you is in your best interest. However, having an attorney is not required in mediation hearings. That being said, having legal counsel at the meeting has its advantages. Consider the following when deciding whether or not to hire an attorney:

• Financial significance of the dispute
• Costs of mediation
• Your financial ability, funds and assets
• The opposition is, or is not, represented
• If you decide not to hire a lawyer to represent you, it would be beneficial to consult with an attorney to prepare for the mediation meetings.

Your Mediation Attorney:

• Will help you through the mediation process. They can also explain your rights and obligations of mediation.
• Can consult you on developing your evidence.
• Could help you with the paperwork and other documents that are required for mediation.

Legal documents can be very confusing and can require knowledge of the law. Attorneys are able to protect you throughout the process or you can use them just for individual tasks such as finalizing the agreement. You may do as much of the work as you want, or of course there are attorneys who are able to counsel you through the entire process.

What Does a Mediator Do?

The role of the mediator is to help and guide the parties to their own resolution. They accomplish this by starting with a joint session and opening statements and then separate into caucuses (separate groups). The joint session also helps define the issues, determines the parties’ positions, sets the ground rules, and outlines agenda. Generally, during the process, parties move to separate caucuses. While caucusing, the mediator will carry messages—offers, counter offers, questions, demands, and proposals—between both parties, help both sides define issues clearly, and help both sides to understand each other’s positions as to aid them in moving toward a resolution. The mediator does not decide the settlement, as they have no authority to do so. Mediation is not finished until the parties agree on a resolution. If the matter does not settle, the claimant has preserved the right to pursue arbitration or other legal means until a resolution has been made. The need to go through the court system when dealing with private disputes is fading and more people are resorting to alternative dispute resolution methods. Businesses and consumers are understanding that court trials can be expensive and time consuming, thus making mediation or other alternative dispute resolution methods favored by many people. It is important to understand the differences between the alternative dispute resolution methods because knowing what options are available to you can safe both time and money.

If you decide you want to consult an attorney, at Christensen & Hymas we offer a free consultation to discuss your case and options which may be available to you.

Photo courtesy of Joergelman and Pixabay. The image is free for reuse.

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