Mediation Questions and Answers

Settling a dispute through litigation can be expensive, stressful, and frustrating. Rather than taking a dispute to court, many court cases are eligible for mediation. Unlike a court trial or arbitration, no judge or other factfinder can issue a ruling. Instead, a mediator helps the two parties find a mutually agreeable solution.

This article answers frequently asked questions (FAQ) about mediation as a form of alternative dispute resolution (ADR). You’ll find answers about how mediation works, why to choose mediation, and what types of cases can be mediated. If you still have questions, contact an ADR attorney near you. They can review your situation and offer legal answers targeted to your circumstances.

Why Choose Mediation?

When two parties are involved in a civil dispute, the best solution might be the one they both agree is fair. This is the goal of mediation. In mediation, the two parties come together to discuss the terms they want to settle their dispute fairly.

Parties might choose mediation over litigation for a variety of reasons. Mediation usually offers faster results than a formal lawsuit. The cost of mediation is also generally lower than that of a traditional lawsuit. Additionally, mediation sessions allow the parties to control the solution rather than rely on a judge to issue a ruling that may satisfy neither party.

Another reason 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 neighbors.

When deciding whether mediation suits your dispute, you must consider other aspects of the mediation process. These considerations include how to find the right mediator and what kinds of solutions mediation can and can’t offer.

When Should I Avoid 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.

Does Mediation Work for All Cases?

Mediation is available for a variety of civil cases. Mediation is often the best choice for cases that don’t involve large sums of money or complicated legal issues. These disputes can range from disagreements between business partners to arguments between neighbors. Mediation typically works well for:

• Business disputes
• Landlord/tenant disputes
• Small claims disputes
• Construction disputes
• Contract disputes
• Divorce mediation, including parenting plans and spousal support
• Child custody and child support disputes
• Other family law issues

These disputes often can be resolved through better communication rather than expensive legal wrangling. Therefore, mediation can offer a less expensive alternative to court.

Some states require child custody disputes to go through mediation before a party can bring a claim in court. This is a type of court-ordered mediation. Parents can devise a child custody plan together rather than having a judge impose one that may not be best for the child or the parents.

Some mediators offer divorcing couples mediation services on all divorce-related issues. These facilitators are often family law attorneys.

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.

How Much Does Mediation Cost?

It depends. In most civil cases, parties wanting to mediate must select their own private mediator. This is often an attorney or trained mediator with experience in the area of law at issue in the case. Mediators charge an hourly rate, which may be lower than that of an attorney representing you in court. The parties may agree to equally share the mediation fee or set up another arrangement.

In divorce cases, the family court may provide the services of a court mediator at no charge or a reduced charge to the parties. Some federal agencies, such as the Equal Employment Opportunity Commission (EEOC), may permit a referral to an agency-sponsored mediation program at no cost to the parties.

What Does the Mediation Process Look Like?

During mediation, a mediator guides the parties through this process and establishes the ground rules. This neutral person helps the parties understand each other’s perspectives and provides advice on the bargaining process. While there is no one formal mediation process, mediation will generally follow these steps:

1. The mediator or mediators will introduce themselves and make opening comments about the rules and goals of the mediation session.
2. Each side is given the opportunity to describe the dispute as they see it without interruption from the other side.
3. 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.
4. 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.
5. 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.
6. 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 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 handles 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 to help the parties 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. In arbitration, the parties consented to the arbitrator issuing 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.

Can I Mediate a Criminal Case?

Mediation can often resolve nonviolent criminal matters. An example of a nonviolent criminal case is verbal harassment. Some jurisdictions may refer certain criminal cases for restorative justice mediation. Restorative justice programs in criminal cases often involve victim-offender conferencing.

Like civil mediation, these programs are voluntary. In appropriate cases, they may permit crime victims to get answers to questions about why the crime occurred and why they became the focus. It may allow offenders to express remorse.

The victim and offender may agree on restitution or other remedies. In a structured way, such mediation programs can help resolve criminal cases satisfactorily for both the victim and the offender.

Criminal case mediation can assist in negotiating a plea bargain in appropriate circumstances. In mediation, interested parties may agree to a dismissal or reduction of charges, or to an agreed plea and sentence. If the parties reach an agreed settlement, they must still gain approval from the defense attorney, prosecutor, and the court.

Learn More About Dispute Resolution Processes: Talk to a Lawyer

Meeting with a lawyer can help you understand the benefits of mediation and other ADR processes. They can assess your legal issue and determine whether mediation works for your situation. It’s important to know your legal options and the different pathways to resolve your dispute, and an attorney can help you choose the most effective way to move forward.

FindLaw’s directory of ADR attorneys can get you started. Enter your city or ZIP code for a list of qualified legal professionals near you. Because state law is relevant, your attorney should be licensed in your state. Your search results will also show important details about potential lawyers, like ratings and contact information.