Mediation is a form of alternative dispute resolution with the goal of resolving disputes between two or more parties. Typically, a third party, the mediator, assists the parties in negotiating a settlement. Mediation is used in many cases, including personal injury cases, employment disputes, and contractual disputes, but it is probably no more useful than in family law cases. This article will give you a better understanding of mediation by explaining the process, answering common questions, and correcting some misconceptions.
What is the mediation process?
The mediation process is a settlement, in the form of a conference, which is guided and supervised by a mediator—an attorney—who has either been chosen by the parties or appointed by a judge. It typically takes place at the mediator’s office or the office of one of the attorneys.
How much does a mediator cost?
Fees usually run between $500 to upwards of $1,200 per side. The cost depends on the length of the mediation. In many cases, it can be done in half of a day, while some take a day or longer. Each party typically pays for half of the mediation fee. In addition, each attorney will bill their client for their time in the mediation process. Sound expensive? It is, but keep in mind that trial and continued litigation will almost certainly be much more expensive. Mediation is a chance to wrap up your case and also put an end to legal expenses.
Common misconceptions
Mediation is not confrontational. Each party is in a separate room with their attorneys while the mediator goes between the rooms. This allows the parties to avoid talking directly, unless both parties agree to speak directly. Mediating is also not a means of forcing settlement. You are not required to settle! That said, most parties do settle in mediation. Why? Because mediation works, even if you have no faith in it whatsoever!
Why is mediation effective?
Mediation undoubtedly works. In my experience, mediation leads to settlement about 90% of the time. Attorneys know this and encourage their clients to mediate with an open mind. In fact, when a client is uncooperative and unreasonable during settlement, attorneys can become quite annoyed. This is because lawyers know better than anyone how a trial consists of rolling the dice. Trial practice is (or should be) a branch of chaos theory, in other words, no outcome is ever assured in the legal system. No matter how determined the client or how capable the attorney, there are never any guarantees in a trial.
Mediation promotes predictability and certainty, but this requires compromise. You do not “win” your case. In fact, a good mediation is by definition one in which both sides leave unhappy. Often, clients find this difficult to accept. However, you must remember, the “legal world” is not the same as the “real world.” Clients who rebel against the process and insist on total victory based on principle often lose in the end.
By communicating this way, you can get a better picture of the costs and benefits of going to trial versus settling. A mediator can analyze your case from an impartial perspective – similar to a judge. They will tell you what “bad things” could happen at trial, and why your position may not be as strong as you had hoped. [1]
Benefits of Mediation
Mediating is much more time and cost effective. Compared to a standard trial which can take several months to years, a mediated case is usually resolved in a matter of hours. In turn, less time spent adds up to major savings for both parties. Privacy is another benefit. Unlike public court hearings, mediation takes place behind closed doors with strict confidentially rules. In a courtroom trial control lies with the jury or judge. However, mediation gives full control to the parties. Though both sides must choose to compromise, this process greatly increases the chance for a mutually agreeable resolution.
What is the Attorney’s role in mediation?
The attorney’s role is relatively simple. I will keep an open mind to settlement, just as I expect you to. I will provide a summary of the case to the mediator before mediation that explains your positions. At mediation, I will not force you to settle, but I will attempt to get the best deal if you are willing to seek it. I will be present to explain the opposing party’s settlement offers and craft a settlement offer that you are satisfied with.
Do you think your case could benefit from mediation? TLC Law, PLLC, is here to help! Give us a call today at 903-871-1714
[1] Source: David J. Willis: https://www.lonestarlandlaw.com/Mediation.html.
