Mediation and Alternative Dispute Resolution
If you’re involved in a legal dispute, you may be able to settle it without going to court. One way to do this is to work out a solution with the help of a mediator — a neutral third-person.
Unlike a judge or an arbitrator, a mediator will not take sides or make decisions, but will help each party evaluate goals and options in order to find a solution that works for everyone.
When you reach an agreement with an opposing party through mediation, you can make it legally binding by writing down your decisions in the form of an enforceable contract. Or, in some areas, you can have your agreement made part of a court judgment.
Frequently Asked Questions about Mediation
What is mediation?
Mediation is a voluntary, confidential process in which a neutral third-party (the mediator) facilitates negotiation between parties to help them reach a mutually acceptable solution to their problem.
The basic structure is for the parties to express how they view the case and what they would like to see happen to resolve it. Unlike an arbitrator who can decide the outcome, a mediator has no decision-making authority, but simply helps disputants communicate, evaluate their needs and interests, generate options and craft a workable resolution.
In essence, mediation is assisted negotiation. The goal is not to decide who is right or wrong. Rather, the persons are asked to provide a picture of the overall situation and to release any pent up emotions that may be blocking the way to resolution.
Mediation focuses primarily on mutual benefits and calls for the parties to approach the problem in a spirit of cooperation. The mediation process transforms adversaries into joint problem-solvers. The focus is not on losing or winning but transforming the situation to maximize benefits to all.
What are the benefits of Mediation?
• Expeditious – people save time and reach a quicker resolution by finding common ground.
• Cost-effective – it costs far less than expensive, drawn out courtroom litigation.
• Confidential – mediation takes place behind closed doors and not in an open courtroom.
• Flexible – the parties agree to follow their own schedule.
• Professional – Attorney Alternative’s Mediators are all Certified Mediators in the State of California
• Non-confrontational – parties can maintain a relationship through mutual compromise.
• Effective – the majority of the cases that go to Mediation are settled within 60 days.
What’s the difference between mediation and arbitration or litigation?
In mediation, the procedure is informal and the parties are free to accept or reject any terms of settlement suggested during the mediation. The parties determine their own outcome.
By contrast, arbitrators and courts are obliged to decide a dispute according to the law and rules of evidence and procedure, and the parties are legally bound by an arbitrator’s award or a judgment of the court. The parties have little control over the outcome.
In arbitration, the parties in dispute authorize a neutral third person to make a binding decision on the dispute after hearing both sides. Arbitration is similar to a private court in which the parties choose their own judge. In contrast, in mediation, the parties may choose the mediator, but they do not authorize the mediator to make any decisions for them.
What kinds of cases can be mediated?
Some examples would be:
• Family disputes – divorce, child custody, visitation, spousal support, roommates, living arrangements
• Church issues – ministry conflict, interpersonal disputes, Elder Board or governing body controversies, inter-pastoral issues, planning or expansion discussions, and more
• Landlord/Tenant – security deposits, rent payment, repairs, evictions, apartment entry, lockout
• Real Estate transactions – purchase/sell disputes, disclosure issues, real estate broker commissions, fee splitting, listing disputes, seller carry-back or other financing matters
• Employer/Employee – contracts, wages, discrimination, harassment, non-union dismissals
• Neighbor/Neighbor – noise, pets, nuisances, parking, use of common property
• Consumer/Merchant – refunds, warranties, repairs, deposits, service
• Debtor/Creditor – small claims, payment plans
Many other disputes can be resolved through mediation, including those involving school, the community, business, accidents and any other dispute as long as both parties are willing to mediate and cooperate in arriving at a solution.
What does the mediator do?
The mediator facilitates communication between the parties and helps them to resolve their dispute. A Mediator will:
• explain the process and procedures involved
• guide the Mediation process to ensure that each party has an opportunity to communicate his or her needs
• encourage and facilitate effective face-to-face communication, interaction and mutual understanding between the parties
• keep discussions going, without showing favoritism or bias towards either party
• accumulate information from each party in a fair and balanced way
• ask questions to uncover additional facts
• attempt to clarify information and encourage co-ordination between the parties
• provide the assurance of confidentiality
• assist each party to identify its real interests and concerns
• create a positive tone and maintain progress in the process
• help the parties to analyse their problem, narrow the issues, and develop a realistic solution
• maintain each party’s self-respect and satisfaction with the process
• structure and prepare the draft of a settlement agreement.
How long does mediation take?
Typical cases such as consumer claims, small business disputes or auto accident claims are usually resolved anywhere from two hours 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 and alimony, as well as child custody, visitation and support — generally requires half a dozen or more mediation sessions spread over several weeks or a couple of months.
What are the typical steps in a mediation?
The steps usually include:
• the parties agree to voluntarily attend mediation and agree to try to cooperate in solving their problem
• a preliminary meeting (or telephone discussion) is held to discuss whether mediation would be helpful in the circumstances
• if so, the parties would provide a written outline of the key issues and facts, exchanged prior to the mediation meeting
• one or more mediation meetings with the parties and the mediator
• assuring each party of the strict confidentiality of the process
• each party states their views of the problem at the mediation meeting
• listening and talking to each other, sharing information, and considering each other’s perspectives
• reviewing the facts and issues involved
• exchanging views and/or proposals
• separate meetings between the mediator and each party (i.e., private caucus)
• developing and agreeing to a voluntary and informed settlement.
The aim of these procedures is for the mediator to help the parties to improve their interaction and to reach agreement on some or all of the issues in dispute.
And mediation will nearly always save you money.
How can I be sure mediation will produce a fair result?
Remember that in mediation, you and the other party will work to create a solution to your own dispute. Unless you freely agree, there will be no final resolution.
Finally, consider that agreements reached through mediation are more likely to be carried out than those imposed by a judge. When folks go to court, the losing party is almost always angry and often prone to look for ways to violate the letter or spirit of any judgment. In contrast, a number of studies show that people who have freely arrived at their own solutions through mediation are significantly more likely to follow through.
What happens at a mediation meeting?
There is no set procedure for conducting the meetings. The process is informal, but should still be understood and agreed to by the parties.
The face-to-face meeting of the parties is important. It provides an opportunity to listen and talk with each other, share information, consider each other’s perspectives, and make voluntary decisions, with the help of an impartial mediator. It can help to defuse personal antagonism and promote the communication and understanding which will achieve settlement.
There may also be separate sessions between the mediator and one or more of the parties. The objective is to narrow and resolve the issues that separate the parties.
The mediator facilitates the meetings. It is usual to start with each party explaining their issues. Fact finding will follow, and this should involve hearing from others who have an interest in the dispute. Free discussion will usually follow, as the information is clarified and understood. This leads to identifying and evaluating options, from which the parties can bargain and finally agree on a mutually-acceptable outcome.
Where the issues are complex, further information is being gathered, or others need to be consulted, a series of meetings may be needed.
If I choose mediation, will I still need a lawyer?
In most mediations, it’s not necessary to have a lawyer participate. This is because the parties are trying to work together to solve their problem — not trying to convince a judge or arbitrator of their point of view — and because mediation rules are few and flexible. If your case involves substantial property or legal rights, however, you may want to consult with a lawyer before the mediation to discuss the legal consequences of possible settlement terms.
Who should attend meetings?
Mediation meetings are usually private. Only the parties should attend the meetings with the mediator.
Other persons may attend with the consent of all parties, but it should be limited to persons involved in the dispute or those with information necessary to assist in the outcome.
Each party should be present personally, and be ready to make a binding agreement.
How can I prepare for the mediation?
This will depend on the nature of the dispute, the type of parties, the extent to which information has already been exchanged, etc. Here are some factors you might wish to consider:
It will usually be helpful for each party to prepare a brief and informal summary of its position on the dispute. This will include background facts, the issues in dispute, and the remedy that is being sought. It is not necessary to prepare pleadings or formal statements of evidence.
Regardless of whether or not written summaries and documentation are used, you will need to plan an oral statement for the mediation meeting. You should attempt to present your concerns and needs in a concise and helpful way, so as to set the scene for the mediation. Plan to speak for 15-30 minutes, or more according to the circumstances.
Take some time to study what is involved in mediation, by reviewing this FAQ and the other information on this site. If you are still unsure on some point of preparation or procedure, you can contact Attorney Alternative and we will be glad to answer any questions you might have.
Think about the issues involved. What is the problem and what do you want to achieve? For example, think about:
• what do you really want?
• what would this do for you?
• what are the underlying needs you need to satisfy?
• how can you explain these needs to others.
Who pays for the mediation?
The mediator’s fees and expenses, and all other expenses of the mediation meetings, are usually paid equally by the parties.
However, the parties can agree otherwise. For example, one person may feel that the only way to bring the other party into the process is to offer to pay more than half of the costs. Again, the parties will arrive at their own arrangement for the payment of fees.
What about confidentiality?
Mediation is a private procedure. Mediation is also intended to be "without prejudice", which means it is confidential and may not be referred to in any subsequent arbitration or court proceedings. The parties are required to maintain that confidentiality.
At a separate meeting with a party (called a "caucus"), the mediator may also hear information which is to be kept confidential from other parties.
Information must not be divulged by the mediator. However, the mediator should not keep confidential any knowledge of a serious crime to be committed or of a physical danger to any person (this is a general principle of law, and not something dependent on the agreement of the parties).
What if agreement is not reached in mediation?
Sometimes it is not possible to settle a dispute through mediation. However, the time and effort put into mediation is still usually found to be useful. For example, the dispute may be subsequently settled by negotiation, based on relationships and understandings developed during the mediation. Alternatively, if it proceeds to arbitration or litigation, the parties and their advisers will be better prepared and better able (subject to confidentiality) to assist the arbitrator or judge in defining the issues and achieving an efficient and final decision on the outstanding issues. Thus, time and cost should be saved anyway.
How do we get started?
The mediation process may be terminated:
• when full or partial resolution of the issues has been reached
• by agreement of the parties
• at the suggestion of the mediator, or
• if a party advises that it is withdrawing from the mediation proceedings (parties cannot be forced to continue with a mediation against their will).
When is the mediation finished?
Either party can suggest to the other party that a dispute be referred to mediation. If the other party agrees, the mediation can be scheduled right away.
The next step is to choose a mediator. The mediator must be acceptable to the parties, have credibility with them, and have their trust to participate actively in resolving their dispute. Attorney Alternative provides expert mediation services from a Certified Mediator who practices in Southern California.