Mediation is one option for resolving disputes that is often overlooked by the parties. Maybe someone has an automobile accident that only involves damage to their vehicle. Maybe they also sustained injuries. Sometimes employers and employees have disagreements about certain working conditions. Neighbors may be disputing the exact location of the property line between them. Couples in the middle of a divorce are unable to agree how to divide their property, or even how to arrange custody of their children. These are just some examples of situations where mediation might be a good alternative choice to a court deciding the dispute for the parties.
Let’s look at what mediation is – and is not – and how it functions as an alternative means of dispute resolution. The role of a mediator is to work with the parties to the dispute and to help them in reaching some settlement or resolution of that dispute that is acceptable to them. Mediators do not decide this resolution for the parties. They do not give advice, legal or otherwise, to the parties. The mediator’s role is to aid the discussion of the problems, explore the possible settlement terms. This would include helping each party to see and understand the position of the other party. Compromise by the parties is often what occurs, as each ‘side” understands what is most important to them and to the other side as well.
A skilled mediator will often suggest possibilities that maybe were not previously discussed or even considered by either party. They will work to open civil and rational discussions and communications between the parties.
Mediation provides advantages to parties that they may not have in formal litigation in court. It allows for them to have the opportunity to find a common ground, and to understand each side’s perspective of the problem. Also, all discussions are confidential. The mediator is not permitted to divulge any information, either to the other party or to the court if no settlement is reached and the case proceeds to a future lawsuit in court.
We are often asked why someone would choose mediation instead of just going to court? Here are some of those reasons:
- Cost savings – When a case goes to court, the parties will spend significant money on taking depositions, obtaining experts’ reports, and for court filing fees,
- Time savings – mediation allows for the opportunity to resolve the dispute without lengthy wait times for the “day in court”
- Having the ability to have significant input into the terms of the settlement, rather than having a court control the outcome
Mediation generally takes place in a neutral location, often at the office of the mediator. It can also take place at a location that is central to all of the parties. This allows everyone to be on equal footing as they discuss their issues and work towards a resolution.
The process of a mediation is both structured as well as non-structured. It will generally begin with all parties together, along with the mediator, in the same room. Each side will provide their perspective of the issues and their suggestion for resolving them. In some instances, the mediator will meet with each party privately as well. Anything said in those private meetings will not be disclosed to the other parties unless the mediator has approval from that party.
Mediation can also result in a settlement that is not always of the type available in a court case. Court cases will generally result in one party owing money to the other party. While that often is also the result in a mediation, other things may also be part of a mediation settlement agreement. One party may agree to do – or not do – something such as
It is becoming more common for many court systems to require the parties to a lawsuit to attend a mediation before their case moves forward in the litigation. This is known as mandatory mediation. Although it is required rather than being voluntary, it will nonetheless follow the same general procedure. Courts have come to understand the value of requiring mediation at the beginning of a case. Doing so often results in quicker results for the parties to the lawsuit. It also opens up the court’s schedule for more difficult cases.
Mediation is a process that can provide significant benefits to all parties to a dispute.
It may help one party to obtain what they believe is a fair and equitable solution to their claim. It may help other parties to that same dispute to resolve their differences in a way that results in less cost or obligation to them. Because all of the parties to a dispute have reached their settlement together, they know that it is a settlement that is best suited to their needs.