by Paul Bielaczyc
3/10/2005
Mediation is a voluntary, interactive process where a neutral, third party, trained to facilitate communications and with negotiation skills, helps all the parties try and reach a mutually acceptable resolution to their dispute. In litigation, the judge issues orders on what is to be done during the course of the case. The mediator has no reciprocal powers. In mediation, the parties, with the help of the mediator, work together and decide how to resolve the dispute.
The mediator introduces the process and then invites each side to explain the conflict from their own perspective. This allows the mediator to better understand the dispute in order to ask questions designed to clarify the respective issues that need to be resolved. The parties are advised that the mediation process is entirely voluntary, and that they may elect to end discussions at any time. Guidelines for appropriate conduct are detailed, often consisting of not interrupting another person speaking, and being respectful to each others case perspective
The mediation discussions by the participants are confidential, based on California law. Any evidence presented in the mediation may not be used in any later proceeding. With Litigation, many aspects of the case become public record. Court litigants have to virtually surrender all elements of privacy regarding their dispute. If the mediating parties are unable to reach an agreement, the mediation process gives them the chance to narrow the issues in the case should they later select litigation.
Should the parties be successful in reaching an agreement, the mediator can work with the parties to draft the terms and conditions of the settlement. In some cases the mediator’s role will continue after the scheduled mediation by providing help to complete the settlement agreement. Any agreement reached during the mediation is intended to be binding with to respect to the issues in dispute
The parties may end up unsuccessful in reaching an agreement, which many times then lead to the filing of a lawsuit. However, the mediation then is a learning process, and one unsuccessful attempt does not mean the dispute must result in a lawsuit being filed. If a lawsuit is filed after an initial mediation, the court can offer mediation again to be considered by the parties before any trial by judge or jury occurs
Mediation reduces costs to parties as it can eliminate the high expenses and fees associated with litigation. Exchange of information is voluntary. Mediation can consume far less time and expedite settlement. This results in additional costs savings by reducing attorney time. There is also the derivative benefit to the mediating parties as they are able to resolve their disagreement and reduce the stress, from uncertainty, and costs associated with litigation.
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