About Mediation
Needing to hire an outside party to settle any dispute is intimidating, but it doesn't have to be. Read below for some questions that are frequently asked of me about mediation.
If you still have questions, feel free to contact me or schedule a 30 minute virtual consultation.
Unlike a judge or an arbitrator, the mediator won't decide the outcome of the case. The mediator's job is to help the disputants resolve the problem through a process that encourages each side to:
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air disputes
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identify the strengths and weaknesses of their case
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understand that accepting less than expected is the hallmark of a fair settlement, and agree on a satisfactory solution.
WHAT IS THE ROLE OF THE MEDIATOR?
The primary goal is for all parties to work out a solution they can live with and trust. Because the mediator has no authority to impose a decision, nothing will be decided unless both parties agree to it. The process focuses on solving problems in an economical manner—for instance, taking into account the cost of litigation rather than uncovering the truth or imposing legal rules.
That's not to say that the merits of the case aren't factored into the analysis—they are. The mediator will assess the case and highlight the weaknesses of each side, the point being to hit home the risks of faring far worse in front of a judge or jury, and that the penalty or award imposed will be out of the control of the litigants.
WHAT IS THE GOAL OF MEDIATION?
IS MY CASE RIGHT FOR MEDIATION?
Anyone can suggest solving a problem through mediation. Neighbor-to-neighbor disputes or other personal issues can be resolved in a few hours without the need to initiate a lawsuit.
It is also common for courts to require some form of informal dispute resolution, and for a good reason—it works. Examples of cases ripe for mediation include:
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Divorce
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Child custody
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Personal injury matter
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Small business dispute
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Family law issue
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Real estate dispute
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Breach of contract
The length of time it will take to solve the problem will depend on the complexity of the case.
Somewhat straightforward cases will resolve in a half day.
More complicated cases will require a full day of mediation, with the negotiations continuing after the mediation ends. If the mediation doesn't settle, either side can file a lawsuit or continue pursuing the current case.
HOW LONG WILL IT TAKE TO RESOLVE MY CASE?
Many people think that mediation is an informal process in which a friendly mediator chats with the disputants until they suddenly drop their hostilities and work together for the common good. It doesn't work this way. Mediation is a multi-stage process designed to get results. It is less formal than a trial or arbitration, but there are distinct stages to the mediation process that account for the system's high rate of success.
Most mediations proceed as follows:
Stage 1: Mediator's opening statement
After the disputants are connected by phone or computer, the mediator introduces everyone, explains the goals and rules of the mediation, and encourages each side to work cooperatively toward a settlement.
Stage 2: Disputants' opening statements
Each party is invited to describe the dispute and its consequences, financial and otherwise. The mediator might entertain general ideas about resolution, as well. While one person is speaking, the other is not allowed to interrupt.
Stage 3: Joint discussion
The mediator might encourage the parties to respond directly to the opening statements, depending on the participants' receptivity, in an attempt to further define the issues.
Stage 4: Private caucuses
The private caucus is a chance for each party to meet privately with the mediator. Each side will be called in separately. The mediator will go between the two parties to discuss the strengths and weaknesses of each position and to exchange offers. The mediator continues the exchange as needed during the time allowed. These private meetings comprise the guts of mediation.
Stage 5: Joint negotiation
After caucuses, the mediator might bring the parties back together to negotiate directly, but this is unusual. The mediator usually doesn't bring the parties back together until a settlement is reached or the time allotted for the mediation ends.
Stage 6: Closure
If the parties reach an agreement, the mediator will likely put its main provisions in writing and ask each side to sign the written summary of the agreement. If the parties didn't reach an agreement, the mediator will help the parties determine whether it would be fruitful to mediate again later or continue negotiations by phone.