Mediation is a process in which two or more parties attempt to resolve a dispute. It’s an attempt to reach an agreement without fighting it out in court. Mediation isn’t the same as a trial. But if the parties involved fail to reach an agreement, then the issue will likely proceed to trial. Below are some common questions concerning the mediation process.
What is a Mediation?
Mediation is a voluntary process in which two or more parties involved in a dispute work with the mediator, an impartial party, to generate their own solutions in settling their conflict. Unlike a trial or arbitration in which a judge’s or an arbitrator’s decisions subject one party to win and the other party to lose, mediation is about finding a solution that works for both parties.
How does a dispute or a case reach mediation?
Cases may be self-referred by anyone who is involved in the dispute, by counsel, or by the court. The majority of cases mediated are civil in nature. It is not necessary for cases to have legal issues and/or lawsuits pending.
When should I consider mediation?
Mediation is always an option if you are thinking about taking your dispute to court. Other signs may be if the dispute has been ongoing, if you want to preserve a relationship being affected by the conflict, if the dispute is upsetting and affecting your daily life, if you cannot afford the time and cost involved with litigation, if you would like to speak to the other party so they may hear your concerns, or if you would like to resolve the dispute yourself without a third party judgment.
What is the mediator’s role?
The mediator’s role is to facilitate communication between the parties, not to impose solutions. Mediators do not advise, take sides, or render a judgment. Instead, the mediator will work with all the parties to help them reach a mutually acceptable resolution.
What kinds of cases can be mediated?
Most civil (non-criminal) disputes can be mediated, including those involving contracts, leases, small business ownership, employment, and divorce. For example, a divorcing couple might mediate to work out a mutually agreeable child custody agreement, or estranged business partners might choose mediation to work out an agreement to divide their business. Nonviolent criminal matters, such as neighbor disputes or other personal harassment issues, can also be successfully mediated.
How long does mediation take?
Typical mediation cases, such as consumer claims, small business disputes, or auto accident claims, are usually resolved after a half day to a full day of mediation. Cases with multiple parties often last longer. Major business disputes—those involving lots of money, complex contracts, or ending a partnership—may last several days or more.
Private divorce mediation, where a couple aims to settle all the issues in their divorce—property division, alimony, child custody, visitation, and support—generally requires one or more full day mediation sessions spread over several weeks or months.
How is mediation different from arbitration?
A mediator normally has no authority to render a decision. It’s up to the parties themselves—with the mediator’s help—to work informally toward their own agreement. An arbitrator, on the other hand, conducts a contested hearing between the parties and then, acting as a judge, rends a legally binding decision. Arbitration resembles a court proceeding: Each side calls witnesses, presents evidence, and makes arguments. Although arbitration has traditionally been used to resolve labor and commercial disputes, it is growing in popularity as a quicker and less expensive alternative to going to court.
What are the stages of mediation?
While mediation is not as formal as going to court, the process is more structured than many people imagine. A typical mediation involves six distinct stages:
Mediator’s Opening Statement: After the parties are seated at a table, the mediator introduces everyone, explains the goals and rules of the mediation, and encourages each side to work cooperatively toward a settlement.
Opening Statements: Each party is invited to describe, in his/her own words, what the dispute is about and how he or she has been affected by it, and to present some general ideas about resolving it. While one person is speaking, the other is not allowed to interrupt.
Joint Discussion: The mediator may try to get the parties talking directly about what was said in the opening statements. This is the time to determine what issues need to be addressed.
Private Caucuses: The private caucus is a chance for each party to meet privately with the mediator (usually in a nearby room) to discuss the strengths and weaknesses of his or her position, and new ideas for settlement. The mediator may caucus with each side as many times as is needed. These meetings are considered the guts of mediation.
Joint Negotiation: After caucuses, the mediator may bring the parties back together to negotiate directly.
Closing: This is the end of the mediation. If an agreement has been reached, the mediator puts its main provisions in writing as the parties listen. The mediator will ask each side to sign the written summary of agreement. This agreement is a legally binding contract. If no agreement was reached, the mediator will review whatever progress has been made and advise everyone of their options, such as meeting again later, going to arbitration, or going to court.
How can I be sure mediation will produce a fair result?
In mediation, you and the opposing parties will work out a solution to your own dispute. Unless you freely agree, there will be no final resolution. This approach has several advantages over going to court:
Legal precedents or the whim of a judge will not dictate the solution.
If your dispute has undiscovered or undisclosed issues, mediation—unlike a structured court battle—gives you the opportunity and the flexibility to ferret them out.
Because mediation doesn’t force disputants to undergo the fear and unpredictability of the courtroom—where a judge or jury can stun either party with a big loss—people who choose mediation tend to be more relaxed and open to compromise.
What Type of Dispute is Eligible for Mediation?
Mediation is for civil cases that don’t necessarily need court involvement. Examples include issues concerning real estate, business partnerships, landlords, family disagreements, and neighbor disputes. Even if there is legal action pending, the parties can still participate in mediation prior to appearing in court.
How Does a Dispute Reach Mediation?
The parties involved sometimes request mediation. An attorney may also request mediation on their client’s behalf. But in some cases, courts, public agencies, and law enforcement agencies require parties to participate in mediation.
What’s the Role of the Mediator?
The mediator is a neutral third party who oversees the mediation process. This person has no power to make legal decisions, give legal advice, or influence the final decision. The mediator’s role is to guide the discussion and help participants remain focused.
Does Mediation Require an Attorney?
An attorney isn’t mandatory, but each participant should consider having legal representation. An attorney can provide legal advice and address any legal concerns. An attorney can also make sure any agreement reached is legally sound. For a Sarasota FL mediator attorney, contact the Law Offices of Matthew Z. Martell.
Benefits of Mediation
The main benefit is that those
involved have more control over the outcome. In a formal trial, a settlement is
imposed upon those involved. But with mediation, the goal is to reach a
resolution that’s beneficial to everyone. Mediation isn’t always successful.
There are some cases in which the parties involved simply can’t reach an
agreement. However, mediation has a high rate of success. For more information,
contact the Law Offices of Matthew Z. Martell.
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