Law Office Report - Summer 2008
Want to Settle Out of Court?
Try Mediation
With the increasing costs of litigation and the tremendous amount of time involved, many parties are looking for an alternate way of resolving a conflict. Mediation can serve that purpose.
Mediation is a voluntary procedure used by many attempting to settle disputes without having to go to trial. For the majority of civil matters, mediation is a logical choice. In fact, mediation is recommended by many judges. It is not binding, so the mediator cannot force a settlement, but can only try and get the parties together. The mediator is usually an impartial, experienced trial lawyer or retired judge. A mediator seeks to help parties to develop a shared understanding of the conflict and to work toward building a practical and lasting resolution.One of the primary uses of mediation involves parties using the mediation process to define the issues, develop options and achieve a mutually agreed upon resolution.
One of the hallmarks of mediation is that the process is strictly confidential. The mediator must inform the parties that communications between them during the intake discussions and the mediation process are to be private and confidential. In general, the information discussed can never be used as evidence in the event that the matter does not settle at mediation and proceeds to a court hearing. Parties who enter into mediation do not forfeit any legal rights or remedies. If there is no settlement during the mediation, each side can continue to enforce their rights through appropriate court or tribunal procedures.
What’s Involved?
Typically, parties that have a dispute start a legal action and wind their way through the courts, ultimately having a judge or jury resolve their conflict. Mediation short-cuts that proceeding. It can occur before a lawsuit is started, or at any time after it is started, and before the actual trial. A trained mediator is hired. The mediator meets with the parties and discusses their disputes in an informal atmosphere. The mediator, with complete background information on the dispute, then meets with each of the parties individually and attempts to determine the basic issues and applies his/her knowledge, training and experience in determining the key issues and attempts to resolve them.
The mediation can last a few hours, a day, or on rare occasions, longer. The key is that both parties must be willing to make concessions and must be interested in having their dispute resolved. Once the mediator learns the details of their dispute and points out to each of them the strengths and weaknesses of their case and what would be involved if they take the matter to court, mutual grounds for settlement are likely to be found.
It has been said that when a dispute goes to trial, the court or jury makes the final determination. When a dispute is successfully mediated, the parties to the dispute make the decision.