A thing or two about mediation.
Oftentimes, judges will send the parties to mediation before allowing them to appear before the Court for trials. So, what is mediation? Why is it used so often? How does it work? In this blog, let’s discuss some of these topics regarding the mediation process.
Mediation is a process that allows the parties to talk over their issues before a mediator to attempt to resolve their disputes on their own. If successful, the parties may significantly shorten the amount of time needed to reach resolution. It will also avoid having the judge make decisions for them (which may make one or both parties dissatisfied.)
WHO is involved in mediation?
Usually, the parties, their attorneys, and the mediator are the only ones involved in the process. In the event that one of the parties has a need for a foreign language interpreter or special aide in order to understand what is going on, additional people may be present to assist. The parties’ attorneys may also bring their office staff to assist if needed. Other individuals not parties to the case, such as relatives, friends, etc. are generally not allowed to participate in the mediation.
WHAT is discussed during mediation?
Mostly topics related to the case, whether they are contested or not, are discussed. However, due to time constraints that are usually placed on mediations, some topics may be discussed in more details than others. What is discussed in mediation may change depending on the flow of the mediation, what the parties may be willing to compromise on, and how much time is available to discuss the other items. Since the point of mediation is to resolve issues in the case, any issues outside of the scope of the lawsuit are generally avoided.
WHEN is mediation generally ordered?
Mediation is generally ordered after a petition for lawsuit has been filed and prior to the date of the final Trial. Sometimes, the judge may order mediation at the first time the parties appear before the court. Sometimes, the judge may order mediation before the parties may even appear before the court. Of course, mediation may also be ordered any time during the case as deemed necessary. And the parties also have the option to request mediation.
WHERE is mediation taking place?
Mediation can take place anywhere - in a mediator’s office, in an attorney’s office, or even over the internet using video conferencing! The actual location may depend on the availability of the parties and the mediator, the location of the parties and the mediator, and (in some cases) whether or not there is a reason that makes in-person mediation impossible or not recommended.
WHY is mediation needed?
As previously stated, mediation provides a chance for the parties to settle their disputes without the need for court intervention. Mediation is also beneficial because it gives the parties control over the outcomes. The cost of mediation is normally less than the cost of preparing and running a trial. Mediation also allows the parties to speak freely without worry that it may negatively impact their case. Most of the time, the mediator will not discuss certain things with the other side if the person divulging the information does not want it shared (except for very specific situations as required by ethical duties of the attorneys and mediator involved). Any information shared in mediation is generally confidential, such that it may not be used against another party in later trials or hearings. Therefore, people feel free to speak openly about their concerns, which allows for more effective resolution of the issues. The outcomes from mediation generally creates more satisfaction in the parties than a decision from the court.
HOW is mediation conducted?
Mediation is conducted with a mediator going between the parties and their attorneys (if represented by one). The mediator may take notes, but those notes are confidential. The parties may first meet in the same room at the start of mediation to discuss some ground rules and objectives. Then the parties usually will go into different rooms, with the mediator going back and forth. The length of the mediation may depend on the complexity of the issues involved, the cooperation between the parties, and the preparation that was done prior to mediation. If any agreements are reached, then the mediator will generally bring the parties back into the same room at the end to confirm the terms of the agreement, and for all to review and sign the agreement before they leave. Agreements reached during mediation typically have legal power and are generally enforceable by law.
Mediation is a powerful tool in a lawsuit. While it may not be as exciting as being in court, it provides other benefits not otherwise available in a trial setting. If you are heading to mediation, it may still be wise to first speak with an attorney to learn about how you can prepare for the mediation to make the most use of your time there. It may also help to speak with the mediator’s office to find out if there are documents or information they would like you to provide beforehand. The better you are prepared, the more smoothly the process will go, and the more likely you will be productive.
The content provided in this blog is for informational purposes only. This is not legal advice, and your viewing of this blog does not form any attorney-client relationship.
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