MEDIATION
“Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser – in fees, expenses and waste of time.” This observation was made over 150 years ago by a backwoods country lawyer by the name of Abraham Lincoln.
“The litigious spirit is more often found with ignorance than with knowledge of the law.” This observation was made by the Roman senator and lawyer, Cicero, over 2,000 years ago.
Legal disputes may be a fact of life, but lawsuits and legal fees do not have to be.
What is Mediation?
Mediation is an efficient and inexpensive way of avoiding a lawsuit. Today mediation is the preferred means to resolving cases. A mediator conducts a conference attended by the disputing parties and helps them arrive at a compromise settlement. There are many benefits to mediation:
- it is voluntary
- the parties arrive at a mutually agreeable settlement
- the parties cannot be forced to settle
- it allows the parties to have control and input into the settlement terms
- it eliminates or minimizes attorney fees and other legal costs
- resolution often occurs within a few weeks (rather than years for trial)
- settlement terms are not limited by court rules, statutes and case law
- settlement may preserve ongoing business or personal relationships
- agreements are final and cannot be appealed
- higher compliance by the parties to honor the terms of the agreement
- discussions during mediation are confidential
How Does a Dispute Enter Mediation?
- many contracts require mediation (and/or arbitration) as the sole means to resolve the dispute, thereby prohibiting a party from filing a lawsuit
- the parties can agree to mediate
- a judge may require the parties already in litigation to go to mediation
When Does Mediation Occur?
A mediation conference can be requested and conducted at the initiation of a dispute, just before trial, or sometime in between.
Who Serves as the Mediator?
The mediator is an impartial and neutral individual who works with the parties to resolve their dispute. Mediators may be:
- attorneys experienced with the law in the area of the dispute
- retired judges
- non-attorneys with appropriate training and experience
What Is the Focus at Mediation?
The focus is to find a solution, not to blame. Mediators:
- help the parties creatively arrive at mutually agreeable settlement terms
- relay settlement positions to the opponents without anger and emotion
- help the parties develop creative compromise solutions
What Is the Process?
The mediation conference is ordinarily held in a neutral location. Briefly, the mediation process occurs as follows:
- the mediator will often separate the parties into different rooms to be able to speak confidentially with each side (known as “caucusing”)
- during caucusing, the mediator will help everyone understand the strengths and weaknesses of both sides’ factual and legal positions
- the mediator objectively evaluate these positions and may provide “reality checks” and predicted trial verdicts
- the mediator and parties explore possible settlement options
- the mediator prepares a settlement agreement to be signed by the parties
What Finalizes the Mediation Process?
A signed mediation agreement becomes a legally binding document. In the unlikely event that one party breaches the settlement agreement, the agreement may be filed with the Superior Court and an abbreviated legal process instituted to enforce its terms.