WHAT IS MEDIATION?
Mediation is a form of dispute resolution in which the parties to a lawsuit meet with a neutral third-party in an effort to settle their case. The third-party is called a mediator. It is the mediator’s job to listen to the each party’s position, help the litigants come to understand each other’s viewpoint, and to then facilitate the negotiation of a voluntary resolution of the case. The purpose of mediation is to avoid the time and expense of further litigation by settling a lawsuit instead of heading into a trial or other costly litigation.
Unlike other forms of alternative dispute resolution (ADR), mediation is not binding on the parties unless a voluntary settlement is reached. The mediator’s role is not to reach a decision – it is to help the parties reach their own decision. Because the power is always in the litigants’ hands, there is no guarantee that mediation will produce a settlement agreement resolving the case.
Then why mediate? First, when mediation is successful—or even when it is partially successful—it can save both sides significant costs. Litigation is expensive, and the more issues that remain unresolved, the more expensive it can be. Second, even when mediation is unsuccessful it may still lead to the parties amicably resolving their case down the road prior to the initiation of a trial. This is because mediation gives the parties the ability to hear and appreciate their adversary’s position and the reasoning behind their views. In the midst of litigation chaos, mediation can serve as a calm moment for reflection and thoughtful consideration which may positively impact the litigation going forward, and which often leaves the parties feeling like a door has been opened to resolving the case in the future.
Appropriate Cases for Mediation
People facing the prospect of litigation often wonder if their case is appropriate for mediation. Nearly any type of case can be mediated, but the best cases are those in which the parties are unlikely to reach a settlement agreement on their own. After all, if the parties and their attorneys are capable of reaching a settlement, there is no reason to pay a mediator to get involved. Conversely, if for some reason there is absolutely no possibility of a settlement, the parties may want to focus on preparing for trial instead. This is especially true since mediation may take away the element of surprise by disclosing a party’s best trial arguments in advance.
However, when settlement is at least a remote possibility, mediation can bring the parties together and get the deal done. Most counties require the parties to attend mediation before a case is set for hearing or trial. The only family law case that may not be appropriate for mediation, and in which a court may not require mediation, is one in which a party is the victim of domestic violence at the hands of the other party.
Choosing the Right Mediator
The best mediator for a family law case is most often a law-trained professional who has experience with the issues involved in your family law case, the judges, and the process. Most often, parties seek out a current or retired attorney or judge with experience litigating similar disputes.
What to Expect During Mediation
First, the parties and their attorneys will meet with the mediator, which can occur in a group setting or in “caucus” (where just one party and his or her attorney meet with the mediator outside of the presence of the other party and the other party’s attorney). The mediator will make a short opening statement and then the attorneys for each side or the parties themselves will make their own statement, offering background facts that they believe are relevant, and offers or legal positions. The mediator will gather additional information and offer or counter-offer terms. The parties can also share confidential information with the mediator in confidence, or instruct the mediator to pass certain information on to the other side. Moving back and forth between the two rooms, the mediator will convey the parties’ settlement offers and, hopefully, facilitate a compromise. If a settlement is reached, the agreement is written and the parties sign the agreement at mediation.