Mediation

What is Mediation?

Mediation is an informal conflict-resolution process brought before an independent, neutral third-party, the mediator. Mediation cases gives the parties the opportunity to discuss their issues, clear up misunderstandings, and find areas of agreement in a way that would never be possible in a lawsuit. Mediation is often voluntary, and typically the mediator has no authority to make a binding decision unless both parties agree to give the mediator that power.

Consequently, mediation cases have many significant advantages over traditional lawsuits, including the following:

  • Quicker: Mediation typically only takes days or weeks (or in very complex cases possibly months), whereas lawsuits typically take months or years. When parties want to get on with their lives, mediation allows a more reasonable timetable for resolving a dispute.
  • Less Expensive: Mediation is vastly less expensive than a typical lawsuit.  Employing a mediator costs significantly less than employing a lawyer, and combined with the much quicker turnaround, you’ll be paying less money over a shorter period of time.  In addition, for certain types of disputes, many non-profits offer mediation services for free or at a nominal rate.
  • Less Formal: The informality of mediation allows the parties to be more engaged than they would be in a court-driven process when an abundance of rules and procedures are designed to separate the parties. Accordingly, since the mediator deals directly with the parties, the mediator can focus the attention of the parties upon their needs and interests rather than on their stated positions.
  • Confidential: Unlike court cases, which are public, mediation is typically confidential, which means there are no records or transcripts and any evidence introduced during mediation cannot be used later or revealed. This reason alone can be a great reason to use mediation rather than file a lawsuit.
  • Preserve Relationships: One of the most overlooked benefits of mediation is that it can help preserve relationships, business and personal, that would likely be destroyed through years of litigation. Because it is a collaborative, rather than adversarial process, and because mediation isn’t inherently a win/lose process, important relationships can often be saved.
  • Greater Flexibility and Control: In mediation, unlike in a lawsuit, the parties are in control. This means that the parties have a much greater say in negotiations and greater control over the outcome.
  • Better Results: For all the reasons above, parties generally report a better outcome as a result of mediation than they do from a lawsuit. Also, because there is no winner or loser, no admission of fault or guilt, and the settlement is mutually agreed upon, parties are typically more satisfied with mediation.
  • Greater Compliance: Finally, because mediation produces better results more quickly and cheaper, compliance with mediated dispute resolutions is generally higher than the lawsuits.

Common Mediation Questions

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.

Can my case be mediated?

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.

Are there cases where I shouldn’t consider mediation?

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 should 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 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.

Do I need a lawyer for mediation?

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.

How long does mediation typically take?

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.

What does the mediation process typically look like?

Wile 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.

Is mediation fair?

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.

Mediation at Bergstrom Law, LLC

Our founding partner, Marlys A. Bergstrom, Esq., is a certified civil and domestic mediator. Mediation services are generally billed at a hourly rate but flat fee options are available. Prior to booking our mediation services, consultation with an Attorney at Bergstrom Law is required.