Mediation is known in the litigation world as “alternative dispute resolution” (ADR), and is essentially a method of resolving a dispute without going through the court system. Mediation is just one form of ADR and can be very effective in resolving disputes quickly and efficiently. This article will first discuss what exactly mediation is and go through the pros and cons of mediation.
WHAT IS MEDIATION?
Mediation is essentially a negotiation. Unless the court orders mediation, mediation will only happen if all parties to the dispute agree to it. To hold mediation, parties need to hire a mediator, who is typically either a retired judge or a lawyer with years of experience. While there is no mandatory rule that the mediator has to have experience in law, it is highly recommended as part of the mediator’s job is to try to convince both sides to come to a resolution using the law.
What happens during mediation varies depending on who the mediator is, but typically mediation will start off with a joint session where all the parties are in one room. The mediator will give a brief explanation of the mediation process then proceed with having each party give a brief summary of their position. This entire process is informal, without court rules or formalities.
After the joint session, the mediator typically has the parties break out into separate rooms where the mediator will have private discussions with each party. The mediator at this point has a job to try to settle the dispute. The mediator is not there to give an assessment on how strong or weak the case is, but rather the mediator’s job is to give a perspective on the litigation process and whether or not it is in the best interest of the parties to continue spending fees, time, and effort in litigating this dispute. Hopefully with some convincing and insight, the parties will reach a settlement.
PROS OF MEDIATION
The result of mediation is binding on all parties. This is a benefit because parties do not have to worry about any party not performing on the settlement reached at mediation. Once all parties have agreed on a settlement in mediation, the dispute has ended.
Mediation can resolve disputes much faster than court. The court system today is swamped. From filing the complaint to the trial date takes, on average, roughly 1 year, assuming no delays. Mediation can substantially shorten that amount of time and end with a result that is most likely favorable to all parties.
Mediation is confidential. Parties are always concerned if they say something bad in mediation, it can be used against them in court. California law is very strict on keeping discussion in mediation confidential. If you end up admitting something in mediation, the opposing side cannot bring it up in trial to use against you. This is to promote free discussion during mediation and to encourage parties to reach a resolution.
CONS OF MEDIATION
Mediation is not free. Because parties are hiring a mediator, parties need to agree to split the cost of mediation. Mediators, depending on their experience, can range from $200 to $600 dollars per hour. Another added cost is the cost of using the mediation center’s facilities. However, if mediation does succeed, it is much less expensive compared to going through the courts.
Mediation does not guarantee settlement. The mediator cannot compel any party to settle. This means any settlement has to be voluntarily agreed to by all parties. To increase the chances of settlement during mediation requires analysis of various factors. Firstly, are all the facts known already? If all the facts are known, it is easier for the mediator to convince the parties to settle. Secondly, has there been an offer already? If one of the parties has already given an offer, it means at least one of the parties is willing to settle, thus increasing settlement chances. And thirdly, are the parties willing to compromise? If a party is stubborn and unwilling to compromise, there is no point in mediation. An experienced attorney will be able to determine whether mediation is a good avenue for resolving the dispute.
Mediation is not for every case. Whether to use mediation as an alternative to court really depends on a lot of factors. It depends on where the case is, who the parties are, and how likely the parties are willing to compromise. The best person to really determine this type of question is actually the parties themselves, as they are more familiar with each other compared to anyone else. If mediation is a potential avenue, definitely speak with an attorney to determine if mediation is worth doing.