Mediation Law

Mediation is typically limited to civil cases. However, some non-violent criminal acts, such as harassment, may be resolved through mediation. Mediation differs from arbitration in some ways, although both provide alternatives to litigation.

This article provides an overview of mediation, including a general explanation of mediation and what types of cases can be mediated. The article also discusses the advantages and disadvantages of mediation.

What Is Mediation?

Mediation is one of several forms of alternative dispute resolution (ADR). Mediation is a negotiation involving facilitation by a neutral third party. Unlike arbitration, where the third party issues a decision like a judge, mediation only resolves a case when the parties agree.

Mediators aim to help disputing parties find common ground and reach a mutually satisfying solution. Mediators oversee the exchange of information and the bargaining process. They may participate in creative problem-solving and assist in drafting a final settlement agreement.

The role of the mediator also includes:

• Interpreting concerns
• Relaying information between parties
• Framing issues
• Defining problems

Mediation is usually a voluntary process. However, sometimes statutes, rules, or court orders can require mediation sessions. Mediations are most commonly ordered in the context of family law, small claims, housing, and sometimes criminal courts.

What Cases Are Eligible for Mediation?

Mediation is an option in most non-criminal matters. In addition, non-violent criminal disputes, such as those involving verbal harassment, can sometimes be resolved through the mediation process. Claims with little or no legal merit may also be referred to mediation. This is because the court system may not be willing or able to provide an actionable judgment in these types of disputes.

Mediation often arises when there are family conflicts. It is also common in divorce proceedings and cases involving child custody. Mediation is also often used to resolve disputes between:

• Family members
• Neighbors
• Business partners
• Landlords and tenants
• Labor unions and management
• Other parties that have a pre-existing and ongoing relationship

What Are the Advantages of Mediation Over Lawsuits?

There are some compelling reasons why mediation can be a better option than going to court. These reasons include:

• Mediation usually only takes days or weeks, while lawsuits can continue for months or years.
• In general, mediation is less expensive than most lawsuits. Hiring a mediator costs less than hiring an attorney, and mediation is required for a shorter period of time. Many nonprofit organizations offer mediation services for free or at a low rate.
• Mediation is a somewhat informal process, which makes the process less confusing than going to court.
• Unlike a court case, which is a matter of public record, mediation is confidential.  

In addition to the above, mediation offers other advantages to consider, including:

• Mediation results in fewer hurt feelings and broken relationships because the parties work together to find a solution rather than fighting over who was at fault.
• Mediation allows more flexible procedures and outcomes than courts, which are constrained by the law. In mediation, the parties have the authority to set or change rules and determine the best outcome.
• People are often more satisfied with the mediation settlement than they are with the result of a trial.
• Mediation agreements have a higher rate of compliance than results from most lawsuits.

What Are the Disadvantages of Mediation?

Although there are many reasons mediation can be helpful, mediation also has drawbacks. Some procedures and tools in the litigation process allow one party to compel another to testify or produce evidence. The goal of procedural rules in court is to reach a fair and impartial determination about who's right and wrong. 

In the context of mediation, fairness is less central. Professional mediators are problem solvers. They want resolutions that both parties are willing to accept at the end of the mediation. This is a different goal than fairness.

Mediation's less formal rules may permit a more aggressive or sophisticated party to dominate proceedings. Mediators have the skill and training to restore some balance. In a courtroom setting, procedural rules help ensure that both parties have equal opportunities to present their views. Attorneys also assist their clients in court proceedings and can even the playing field.

Even with a skilled and sensitive mediator, some parties will have difficulty expressing their positions in mediation. Victims of domestic violence, for example, may find it difficult or impossible to assert themselves in the informal face-to-face setting of mediation. For this reason, many states discourage the use of mediation between parties with a history of domestic violence.

Get Help From a Skilled Attorney

If you're considering mediation as a form of conflict resolution, it can be helpful to get legal advice. Speaking with an experienced ADR lawyer can help you determine whether mediation is right for resolving your legal issues. An attorney can also educate you about other forms of the dispute resolution process.