MEDIATION FAQ's

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Mediation is a great way to solve traditional legal disputes and can be a much cheaper, quicker and more pleasant process than litigation. Not too many people are very familiar with mediation, however, and most people have questions about whether the process is right for them. Here are some of the most common mediation questions and their answers.

Typically, only civil cases can be mediated. The general exception is that certain nonviolent criminal matters, such as harassment, often allow mediation. Typical civil cases that are mediated include business disputes, landlord-tenant disputes, small claims disputes, divorces, child custody disputes and contract disputes. 

One of the primary reasons to choose mediation over typical litigation is if you are concerned about maintaining an important relationship with the person on the other side. Mediation is more cooperative and collaborative, so it is a good choice for disputes that involve business partners, co-parents, or next door neighbors.

Even if your case can be mediated, you should always question whether it is the best option given your goals and situation. Some typical reasons to not mediate might include:

• You strongly feel that the other party should have to admit or be found guilty. Mediation will typically not involve any sort of admission of guilt; instead, it is structured more like a compromise.
• You want to send a "message" or establish a legal precedent. Results from mediation are not binding on other parties, so even if you mediate a successful result from a large company, it will have no bearing on future cases against that company.
• You believe a jury would be extremely sympathetic and award you a big verdict. Mediation is a compromise, and as such it tends to exclude extremely large settlements that juries can sometimes award.
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Mediation does not require a lawyer; in fact 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 to offer advice during the mediation which is substantially cheaper than hiring a lawyer to litigate your case. Also, a lawyer should generally be consulted to discuss the consequences of the mediation and any settlement.

Statistically, most mediation cases only last a day or two. This is partly because mediation is less cumbersome than litigation, but also because people typically take smaller disputes to mediation and save really large complex claims for litigation. Larger business and divorce/custody mediation may last significantly longer - weeks even - but this is still much quicker than traditional litigation.

While there is no formal mediation process, typically mediation will follow these steps:

• The mediator will introduce him or herself and make some opening comments about the rules and goals of mediation.
• Each side is given the opportunity to describe the dispute as he or she sees it without interruption from the other side.
• Depending on the mediator and the parties, the mediator may then start a mutual discussion with both of the parties present or may engage each party privately, going back and forth, working out each issue.
• After discussing the issues with the parties, a mediator will typically bring both parties together to jointly negotiate a solution.
• If the negotiation is successful, then the mediator will put down the agreement in writing, advise them to consult a lawyer, and ask them to sign pending their lawyer's agreement.
• If the negotiation was not successful, the mediator will typically summarize the issues the parties did agree on, and advise them of their rights going forward.
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Mediation should result in a fair compromise, because both sides are more able to freely discuss potential problems (mediation does not result in a public record unlike court cases) and neither side is bound unless he or she explicitly agrees to the proposed settlement. This means neither party is bound by the decisions of a judge or jury, and only agrees to what he or she considers fair.

What kind of mediator you select should depend on the type of dispute since most mediators specialize in certain areas. For instance, if you have a local dispute with a neighbor, then a community mediation center might be the best place to find a good mediator. If you have a complicated business dispute, then larger, national organizations such as JAMS or the American Arbitration Association may be a better fit. Similarly, if you have a divorce-related dispute, then you may want to select someone who primarily deals with divorce and is local. Findlaw provides links to many mediators in your area, so investigate them to decide which is the best fit for your dispute.

Mediation and arbitration are similar processes, with one really significant difference. A mediator typically doesn't have authority to make a decision without the approval of both parties. An arbitrator, on the other hand, is more like a judge and has the authority to make a decision over both parties without their consent. Consequently, since the stakes are higher in arbitration, it typically follows a more court-like process with formal rules, the calling of witnesses, presentation of evidence, formal arguments, etc.

Arbitration is more common between large businesses and consumers where, as part of buying or using a product, consumers sign agreements saying they will arbitrate disputes rather than go to court. Some courts allow this, while others find this fundamentally unfair because arbitration rules are often set up to favor businesses.