Mediation, not Litigation

What is mediation?
Mediation is a process by which a neutral third party hears a dispute between two or more parties and attempts to help the parties settle their dispute without judging the merits of the case. The Mediator does not make a decision, rather he enables the parties to make decisions for themselves.

Who serves as mediator?
The right mediator for your case is one who demonstrates overriding neutrality in evaluating and resolving your case. The effective mediator will help the parties recognize the strengths and weaknesses of both sides' case, so that at the end of mediation both parties are reasonably satisfied with the outcome. The effective mediator will also help parties consider the risks and costs of resolving a dispute before a judge or jury, without necessarily meeting the expectations of either party.

Mediate, or Litigate?
The overriding majority of cases filed in the court systems settle before trial. Some settle early, others settle on the courthouse steps on the day of trial. The difference between the former and the latter is the amount of money and time a party will spend in getting from one point to the other. Depending on the type of case, the cost could range from hundreds to several thousands of dollars. Often, the costs of litigating the case are not recovered at the time of settlement. Thus both parties bear their own burden of costs.

Mediating a case before a lawsuit is filed enables the parties to present their case to a mutually selected neutral person (or in some cases two persons as co-mediators) before any money is spent on litigation. Many times the simple process of telling one's story to a neutral person willing to listen will take the parties a long way toward settlement. The cost of mediating a case is minimal compared to the costs incurred through the life of a lawsuit.

How do I start the mediation process?
If you have a dispute with another person or business, which you want resolved, you can first propose to the other side to mediate the case. If you are uncomfortable with that option, then you can make the first call to the mediator and ask the mediator to approach the other side with the invitation to mediate. A well-trained mediator can effectively maintain his or her neutrality during this process.

What if mediation does not settle my case?
If the parties are unable to reach an agreement during mediation they are free to pursue all other remedies available to them, including litigation and trial. If a mediation agreement is not reached, the parties can take comfort in knowing that the negotiations exchanged during mediation are protected and are treated as confidential and the mediator cannot be forced to testify at trial as to what was said in a mediation conference. Any offers made during the mediation process, and any concessions made, are confidential if the case doesn't settle. Of course, certain limitations do exist in connection with protecting others from danger or imminent harm. But, laws of confidentiality generally protect parties to most typical disputes.

What is the secret to a successful mediation?
The mediation process is as successful as the willingness of the parties to participate in good faith to reach a settlement. A good mediator will work with the parties until he or she determines that a settlement cannot be reached at the time. Parties who consider what they have learned during the mediation process often reach a settlement after the conference in order to avoid spending precious time and additional funds, which may never be recovered at trial.