There is a common misconception that the best way to solve a legal dispute is taking the matter before a judge. While in some cases that is the best option, there are many situations that can be successfully resolved through alternative dispute resolution (ADR) methods, such as mediation. Unfortunately, most people are unaware of exactly what mediation is, how it works, or what to expect. Daic Law is here to help. Read on to learn more about mediation and determine if it is right for your situation.
What is Mediation?
Mediation is the process of settling a dispute outside of court. It is generally viewed as a collaborative approach to dispute resolution, where both parties have the opportunity to express their individual arguments, discuss possible solutions, and then find a resolution that is mutually agreeable.
How Does Mediation Work?
The process of mediation begins with the selection of an objective third party who is the mediator. This person does not take sides, is not a judge, and does not make executive decisions about the case. The mediator is there to help keep the environment amicable, serve as an objective party to the facts of the case, and help guide resolution. Mediation works on the assumption that both parties can be reasonable, can discuss their dispute, and can come to an agreement without formal legal action being taken.
What to Expect During Mediation
The process of mediation includes several general steps, but may vary depending on your case. The common steps in the mediation process include:
- Opening Mediator Statements – The mediator introduces him or herself, explains the process and rules of mediation, and expresses his or her desire for amicable resolution.
- Opening Disputant Statements – Each party will have the opportunity to describe their position in the dispute, including the nature, how the dispute arose, and what they hope to see happen in the case. During this process, the other party is not allowed to interrupt or interject their opinions or arguments.
- Joint Discussion – This part of mediation includes an open discussion among both parties. Both parties are encouraged to speak directly to one another, with the mediator helping steer the discussion away from arguing or inappropriate behavior.
- Private Caucus – Each party, and his or her attorney, meet privately with the mediator to discuss their position, its strengths and weaknesses, and develop ideas for resolution. There is no limit to the number of private caucuses that parties may have, but remember that the mediator is not taking sides, but rather is helping both sides reach agreement.
- Negotiation – After developing a solid position, both parties have the opportunity to negotiate directly.
- Closure – After an agreement has been reached, the mediator will have the opportunity to review the agreed upon terms, write a summary of the agreement, and have both sides review and sign the resolution. At this point, each party may have his or her attorney review the document before signing. If an agreement was not reached, the mediator may advise the parties to meet again later, or take their case to trial.
What Type of Cases can be Mediated?
Mediation can be used to settle disputes over a wide range of legal matters that do not legally require direct court involvement. The most common cases that are mediated are:
- Contract disputes
- Divorce or child support agreements
- Business litigation
- Small claims disputes
- Real estate disputes
There are, of course, some cases that may not be suitable for mediation, such as cases where:
- There are extreme emotions, such as contested divorces or child custody cases
- One party wants to set a legal precedent
- One party believes the other to be “guilty”, and wants admission or inclusion of criminal allegations
- One party believes that a jury will be extremely sympathetic to their situation, thus choosing a trial over compromise
Does Mediation Require an Attorney?
Mediation does not legally require that you have an attorney, but as with most legal matters, it is a good idea. Attorneys offer knowledge of laws pertaining to your dispute (divorce, business, real estate), guidelines for certain legal matters, and in the event your case goes to trial, he or she is already familiar with your case, and you. Attorneys can also help you be sure that the resolution you agree to is fair and legal. Remember, a mediator is not necessarily educated in law, and he or she may not be familiar with all the legal elements of a certain area of law or dispute.
To learn more about mediation and your case, contact Daic Law. We are experienced in helping clients understand their legal rights and options for the most successful outcome possible.