Most legal cases don’t actually go all the way to a trial. Instead, cases are settled through mediation or collaboration, or decided in an arbitration — almost always for a much lower cost than continuing to fight. Learn about these options for resolving conflict below.
What is Mediation?
It’s the smart alternative for people who want to determine their own future.
Mediation, also known as Alternative Dispute Resolution (ADR), or conflict resolution is an open discussion process for managing negotiations between the parties led by a neutral mediator. The impartial mediator encourages the parties in a dispute to communicate face to face to identify key issues, gather relevant information, and create options for resolution without a long, costly, emotionally draining court battle.
The ultimate goal of mediation is to have the parties work out their own solutions, rather than having a solution to their dispute imposed by a judge or magistrate. Mediation is non-adversarial, private, less costly, and faster.
Frequently, people enter litigation with fixed uncompromising positions on their case and conflict. When they argue from these rigid positions, it is easy to reach stalemate, impasse, and frustration.
Mediation, by focusing on the needs and interests underlying these positions, is better able to create solutions that are acceptable to all parties and it does it at a reduced financial and emotional cost. The burdensome depositions, interrogatories, motions, hearings, trials and appeals that are at the heart of litigation are eliminated. The parties are able to “move on” with less stress and animosity.
What does Mediation cost and how long does it take?
A mediation can sometimes be completed in a few hours or it might take several days. The amount of time simply depends on the complexity of the issues and the willingness of the parties to compromise. A Divorce Mediation can take between three and six sessions of 2 hours to 3 hours each and is based on an hourly rate plus the hours of outside consultation time and time to prepare the Memorandum of Understanding. A Business Mediation can be completed in the same length of time, but often takes much longer if there are several parties, employees and partners and complex business involved. The cost is usually divided between the parties.
What are the Rules of Mediation?
- Mediation is completely voluntary. Any party can quit any time.
- It is confidential. No information obtained can be used in court. The mediator cannot be called as a witness, nor can his notes or documents used in the process be subpoenaed.
- It is private.
- The mediator is impartial and neutral.
- The parties must negotiate in good faith.
- The mediator provides each party the continued opportunity to identify and express his/her needs, interests and options for resolution.
- No party is permitted to interrupt the other when they are speaking.
- No rude or obscene language is permitted.
- There must be full disclosure of financial data and other relevant information.
- The parties negotiate their own settlement.
- The mediator does not act as legal advisor or provide legal advice.
- If agreement is reached and signed, it is enforceable in legal proceedings.
What is the role of the Mediator?
- is neutral and does not decide who is right or wrong or take sides.
- helps both sides communicate more effectively and clarify issues.
- encourages each person to listen and hear the other side.
- educates parties about successful negotiating techniques.
- creates an environment that fosters productive negotiation.
- explores the underlying needs and interests of both parties to help create options for resolution.
- helps generate additional information, options and ideas.
- provides reality tests to check the reasonableness of demands.
- protects the mediation process from abuse by a party who seeks to harass or intimidate, rather than negotiate.
- meets or discusses issues with parties’ attorneys.
- helps both parties find a mutually beneficial solution.
- prepares session memos and the memorandum of understanding.
What is a Mediation “caucus?”
“Caucus” is just a fancy word for a separate and private meeting between the mediator and one of the parties. In business mediation, the tradition is to keep the parties in separate rooms with the mediator shuttling between the parties to pass the latest proposals back and forth. Then, the parties would meet in joint session only when final agreement is near.
In divorce mediation, the parties meet jointly for most of the sessions and break out into caucus when an impasse has been reached. In the caucus the mediator and the party discuss the strengths and weaknesses of the case, and the party may share information or needs he/she is not prepared to discuss in joint session. A caucus session is confidential and nothing said in it may be shared with the other side without express permission. The mediator will almost always have private meetings with both parties, rather than have the appearance of favoritism by caucusing with only one party.
What do Mediators want from the Parties?
- Willingness to discuss their wants and needs beyond positions
- Openness to consider and offer options to make progress
- Willingness to consult with attorneys to understand their legal rights and obligations
- Good faith bargaining
- Prompt payment
What if I have been forced into Mediation by a court?
- Make the most of it!
- You have nothing to lose.
- You might even find that it will give you a satisfactory solution faster and at less cost.
If we reach an agreement and sign it, is it legally binding?
Yes. It is binding in a court of law, like any other contract.