Common Mediation Questions
Mediation can be an effective way of resolving legal disputes using a neutral third party. The process is often less expensive, faster, and more streamlined than litigation. However, many people aren't familiar with mediation and have questions about whether the process is right for them.
This article will discuss some of the most common mediation questions and their answers. Topics such as whether a case can be mediated and whether a lawyer is needed are addressed.
Can my case be mediated?
Typically, only civil cases can be mediated. One exception is that some nonviolent criminal matters, such as harassment, allow mediation. Typical legal matters that are mediated include:
- Business disputes
- Landlord-tenant disputes
- Small claims disputes
- Divorces, including parenting plans and spousal support
- Child custody and child support disputes
- Other family law disputes
- Contract disputes
One of the primary reasons to choose mediation over typical litigation is if you're concerned about maintaining a significant relationship with the opposing party. Mediation is more cooperative and collaborative. Therefore, it's a good choice for disputes that involve business partners, co-parents, or next-door neighbors.
Are there cases where I shouldn't consider mediation?
Even if your case can be mediated, it's a good idea to question whether mediation is the best option. It's essential to consider your goals and situation. Some typical reasons to avoid mediation include:
- You strongly believe the other party should admit fault or lose in court. Mediation doesn't usually involve any admission of fault. Instead, it's structured more like a compromise. Both parties sign the agreement. If court proceedings are pending, the parties may ask the court to adopt the agreement as a court order to resolve the case.
- You want to establish a legal precedent. Results from mediation aren't binding on other parties. Even if you mediate a successful settlement agreement from a large company, it will have no bearing on future cases against that company.
- You believe a jury would be highly sympathetic and award you a substantial verdict. Mediation is a compromise. It doesn't usually result in significant settlements like those that are sometimes awarded by juries.
Do I need a lawyer for mediation?
Mediation doesn't require a lawyer. Part of the advantage of mediation is the lack of a lawyer and the corresponding legal fees. However, you may want to hire a lawyer as a consultant. As a consultant, a lawyer can offer legal advice during mediation. This is substantially cheaper than hiring a lawyer to litigate your case. You may also want to consult a lawyer to discuss the consequences of mediation and any settlement.
How long does mediation usually take?
It depends on the complexity of the case. Some mediation cases in family court may last 2-4 hours over a couple of days. Other contract disputes might take a day or two. This is partly because mediation is less cumbersome than litigation and because people usually take more minor disputes to mediation.
Large complex claims are often saved for litigation. More extensive business mediation, custody mediation, or divorce mediation may occur in 2-3 sessions over several weeks. This is still quicker than traditional litigation.
What does the mediation process typically look like?
While there is no one formal mediation process, mediation will generally follow these steps:
- The mediator or mediators will introduce themselves and make opening comments about the rules and goals of the mediation session.
- Each side is given the opportunity to describe the dispute as they see it without interruption from the other side.
- Depending on the mediator and the parties, the mediator may then start a mutual discussion with both parties present. In the alternative, they may engage each party privately, going back and forth, working out each issue. Sometimes the parties are in separate rooms.
- If the mediator has discussed the issues separately with each party, they will typically bring both parties together to negotiate terms of the final agreement jointly.
- If there is a successful mediation, the mediator will put the mediation agreement in writing. The mediator will advise the parties to consult a lawyer if they choose. The mediator will then ask the parties to sign the agreement after reviewing the document with their lawyer.
- If the negotiation is unsuccessful, the mediator will typically summarize any issues the parties agreed on and explain the next steps in the legal process.
Is mediation fair?
Mediation should result in a fair compromise. This is because both sides are more able to discuss problems and propose solutions freely. Unlike court cases, mediation doesn't result in a public record. Neither side is bound unless they explicitly agree to the proposed settlement. Successful mediation prevents the parties from being bound by the decisions of a judge or jury after a hearing or trial. Parties approve an agreement and agree it is fair when they sign it and/or the court accepts it to resolve any litigation.
How can I find a good, reliable mediator?
The mediator you select depends on the type of dispute that's at issue. Most mediators charge an hourly rate and specialize in certain areas. For instance, a community mediation center might be the best place to find a good mediator if you have a dispute with a neighbor.
If you have a complicated business dispute, larger national organizations such as JAMS or the American Arbitration Association may be a better fit. Similarly, if you have a divorce-related dispute, select someone who primarily deals with family law in your local area.
Is mediation different than arbitration?
Mediation and arbitration are similar alternative dispute resolution (ADR) processes, with one significant difference. A mediator acts as a facilitator so that the parties can reach a settlement on their own terms. So, a mediator typically doesn't have the authority to make a decision without the approval of both parties. On the other hand, an arbitrator is more like a judge and has the power to decide the matter. With arbitration, the parties gave consent for the arbitrator to issue a ruling when they approved the arbitration agreement as part of their contract. Since the stakes are higher, arbitration typically follows a more court-like process with:
- Formal rules
- The calling of witnesses
- Presentation of evidence
- Formal arguments
Arbitration is more common between large businesses and consumers. It's common for consumers, as part of buying or using a product, to sign agreements saying they'll arbitrate disputes rather than go to court. Some courts allow this. Other courts find this type of agreement fundamentally unfair if the arbitration rules appear set up to favor businesses.
You Don't Have To Solve This on Your Own – Get a Lawyer's Help
Meeting with a lawyer can help you understand the benefits of mediation and mediation services and whether mediation works for you. Visit our attorney directory to find a lawyer near you who can help you protect your legal rights.
You Don’t Have To Solve This on Your Own – Get a Lawyer’s Help
Meeting with a lawyer can help you understand your options and how to best protect your rights. Visit our attorney directory to find a lawyer near you who can help.