Mediation

Mediation

The use of Mediation as a means of resolving disputes or merely resolving open issues is becoming more and more popular in the United States.  The popularity of Mediation is perhaps stunted by the fact that it cannot be reenacted in mainstream media with the same intensity of the potential court room battles that Litigation brings.  Thankfully so.

Mediation refers to a kind of Alternative Dispute Resolution (ADR) wherein the parties to a lawsuit meet with a neutral third-party while considering and trying to settle a case.  The third-party is usually an individual who has vast experience and subject matter expertise, such as a retired Judge.

The third-party is known as the mediator. It is the mediator’s role to listen to the evidence, help the litigants come to a mutual understanding of each other’s viewpoint regarding the controversy, and then facilitate the negotiation of a voluntary resolution to the case.  That is the best-case scenario, and it works more often than not.  The purpose of Mediation is to avoid the time and expense of further Litigation by settling a lawsuit or open issue relatively early the process.

Unlike other forms of ADR, Mediation is never binding on the parties. In fact, thinking about a Mediation proceeding in terms of whether the parties will be bound by the outcome suggests a misunderstanding of the nature of Mediation. The mediator’s role is not to reach a decision – it is to help the parties reach their own decision. There is no guarantee that Mediation will produce a settlement agreement resolving the case. In fact, in many cases mandated or court-ordered Mediation will leave the litigants no closer to reaching a settlement afterwards than they were beforehand.

As mentioned, Mediation is successful most of the time and is usually much less costly in comparison to Litigation. It also takes much less time, sometimes even a couple of hours, one day, or week to come to a decision.

For instance, taking a personal injury case all the way to trial can easily cost $100,000 or more. On the other hand, the parties can pay a mediator a couple hundred dollars an hour, with a very real chance that the case will be resolved by the end of the day.

The Victoria Law Group has advised clients on and participated in various types of legal matters that have gone to Mediation.  Cases in which we possess the requisite experience include Family Law, Bankruptcy, Business Matters, Real Estate, and more.

Please contact us if you are contemplating or considering a Mediation.

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Mediation is a defined as a private process wherein there is an existence of a neutral third person called a mediator who provides aid to the parties in discussing and trying to resolve the dispute. The parties get the requisite opportunity to describe the issues, discuss their interests, understandings, and feelings; provide each other with information and explore ideas for the resolution of the dispute. 

While courts can mandate that certain cases go to Mediation, the process remains absolutely “voluntary” wherein the parties are not required to come to agreement. The mediator does not have the power to make a decision for the parties, but he/she can only help the parties find a resolution that is mutually acceptable. The only people who can resolve the dispute in Mediation are the parties themselves. 

There are particular definitions provided by a few authorities which can be conferred as the go-to-meaning for the terms ‘ADR’ and ‘Mediation’. 

Alternative dispute resolution (ADR) is a program that encourages settlements outside the traditional Litigation process. ADR’s purpose is to help parties find mutually satisfactory solutions to their problem more efficiently, at a reduced cost and a reduced commitment of time. (https://www.fec.gov/legal-resources/enforcement/alternative-dispute-resolution/).

Mediation is an informal negotiation assisted by an impartial third party (the mediator) that encourages disputing parties to craft their own solutions (https://www.adr.org/Mediation).

When people find themselves in the seemingly bottomless black hole of Litigation, they often figure out whether their case is appropriate for Mediation or not. There is a possibility of any type of case being mediated, but the most appropriate cases are those in which the parties are unlikely to reach a settlement agreement on their own. After all, if the parties and their attorneys are capable of reaching a settlement, there is no reason to pay a mediator to get involved. Conversely, if for some reason there is absolutely no possibility of a settlement, the parties may want to focus on preparing for trial instead. This is especially true since Mediation may take away the element of surprise by disclosing a party’s best trial arguments in advance.

However, when settlement is at least a remote possibility, Mediation can bring the parties together and get the deal done. Common types of lawsuits that end up in Mediation include breach of contract disputes, injury and tort cases, wrongful termination claims, family law matters, and more. Cases that are not appropriate for Mediation include DUI and criminal charges, bankruptcy, deportation and related immigration matters, disability appeals, and any other types of cases prosecuted by the government. Cases that do not involve an active dispute, such as estate planning matters or real estate transactions, are also not good candidates.

The major incentive of Mediation is the portended efficient method of resolution. 

The benefits of Mediation are so well established that it may not require any further incentives. On the other hand, it is not unusual for a judge to exert considerable pressure to persuade the parties and their counsel to agree to voluntary Mediation of the case before him/her. The judge may urge the parties to estimate the costs associated with taking a matter all the way to trial. Since the legislature encourages Mediation at the earliest possible stage, i.e. before most pre-trial discovery has taken place, the cost-savings can be substantial. At that stage, in addition to the pre-trial discovery that still needs to be done, experts may have to be consulted, procedural issues may arise which may be the subject of motions, and legal issues will have to be researched and briefed. Both parties will reap considerable benefits if Mediation can settle the litigated case before the parties incur all these expenses.

per cent of all civil cases that are filed do not reach trial. They are most likely to be withdrawn, settle through the process of negotiation, or settle as a result of MeIf we look at the statistics presented by a typical Court, we infer that as many as 97 diation. 

Thousands of cases were completed and resolved, either by way of settlement conference, non-binding arbitration wherein both the parties accepted the award, or successful Mediation. 

Most of the cases which end in non-agreement at the Mediation stage get settled later as the parties tend to continue the bargaining process that started at the court-mandated Mediation session. 

The UMA promotes the use and uniformity of Mediation in the United States. It grants a legal privilege for those involved in the Mediation process. The Model Law promotes the use and uniformity of Mediation to resolve international commercial disputes. It offers basic rules for the Mediation process.

Primary interests of the UMA include providing a privilege, something the parties cannot accomplish by contract, respecting confidentiality for Mediation communications and encouraging the use of fair process conducted with integrity. The UMA is designed to simplify rather than complicate the law.

Although the process of Mediation is voluntary and non-binding, it results in a strikingly high settlement rate. Parties are more satisfied with a mediated resolution, rather than one imposed upon them (such as a court judgment), because they created the solution themselves.

The best mediator for a particular case will be a law-trained professional who is familiar with the subject matter of the case. 

Most often, parties should seek out a current or retired attorney with experience litigating similar disputes. It is necessary to understand that the best attorneys do not always make the best mediators.

Successful trial lawyers are known for being aggressive, while successful mediators are known for their ability to help other lawyers and other parties calm down and reach a consensus. 

Mediation is what you call a less formal proceeding. 

First, the parties and their attorneys meet together with the mediator, usually in a conference room at the mediator’s office. The attorneys for each side will make a short opening presentation, after which the mediator usually splits up the two sides into separate offices or meeting rooms. At this point the mediator will visit with each side individually. The mediator will offer his or her thoughts on case, and the parties can respond by sharing information with the mediator in confidence, or with instructions to pass certain information on to the other side. Moving back and forth between the two rooms, the mediator will convey the parties’ settlement offers and hopefully facilitate a compromise.

General requirements for court-appointed mediators can be read below:

  • Training

States with official court mediator rosters often require between 20 and 40 hours of approved Mediation training. Of those states with comprehensive statewide standards, the majority require greater training for neutrals who wish to mediate family disputes than for those interested in civil disputes. Domestic relations cases often involve high conflict and most of the parties in such cases are self-represented litigants. Mediators in family cases also often work with parties who are unfamiliar with the law, so it’s important that family court mediators are intimately aware of the nuances related to such cases.

  • Experience

Experience requirements vary by state, but most include a minimum number of Mediations performed either independently or under the supervision of a mediator mentor. Some states will also accept Mediation experience in place of other requirements. In Louisiana, for example, a person must be licensed to practice law in the state or have mediated at least 25 disputes or engaged in more than 500 hours of dispute resolutions.

  • Education

Few states require a law degree to be recognized as a court-approved mediator. In some states, a bachelor’s degree in a specific field may be required for family court mediators. For example, some Courts require custody mediators obtain a bachelor’s degree in law, psychiatry, psychology, counseling, family therapy or any comparable behavioral or social science field. Waivers may also be available to allow experienced mediators to bypass education requirements.