In recent years, the use of mediation as an important settlement tool has been steadily gaining acceptance, saving time and money for the participants. Formal mediation programs are currently sponsored by state and federal trial and appellate courts, governmental agencies, bar associations, business organizations, and civic and religious groups.
In mediation, an impartial third party helps the parties to negotiate the resolution of a dispute or conflict. Unlike a judge or arbitrator, the mediator lacks authority to impose a solution. At its core, mediation is facilitated negotiation. The mediator serves as an agent of the parties, retained to assist them in resolving the dispute.
The central feature of mediation is the self-determination of the parties. The mediation process provides a vehicle for parties, their legal advisors, and the mediator to shape creative outcomes to the particular dispute or conflict. It is not unusual for the settlement outcome to exceed the remedies commonly available to a judge, arbitrator, or jury.
Mediation is used to resolve a wide variety of disputes, including employment relations, personal injury claims, commercial disputes, community relations, construction law, education, environmental law, family law, franchise disputes, insurance coverage claims, legal and/or medical malpractice, product liability, public policy, property damage, professional reorganization, real estate, racial and ethnic concerns, tort claims, and international relations.
Mediation offers significant advantages over traditional litigation:
In most cases, the mediator selected is a trained professional, well-versed in the specific issues that are in dispute. The mediator will utilize commonly recognized mediation techniques to assist the parties by providing focus on the facts at issue and discussing the strengths and weaknesses of the various options and positions taken by the parties.
Mediation is quite flexible and may be conducted prior to the filing of litigation or at any time during the court process, including appeals.
After the mediator is selected, mediations can typically be scheduled at a time and location convenient to the parties within days or weeks.
Mediation is vastly less expensive than the costs of information-gathering (discovery), motion practice, and trial court procedure.
The mediation process permits individual parties to be more personally engaged as decision-makers than would ordinarily be the case in an attorney-directed trial matter. The parties are full participants in mediation and can express their own opinions and concerns. The process allows the mediator to focus his/her attention on the parties’ needs and interests rather than their stated positions.
Unlike the public nature of court cases, mediation is confidential. Typically, negotiation positions of the parties cannot be revealed or used later in court. Making a transcript or recording of the mediation session is not permitted.
Because mediation is a collaborative negotiation process, it is often possible to preserve important personal or business relationships. The public nature of the litigation process may often injure or destroy, rather than preserve, important business and personal relationships.
Flexibility and Control:
In mediation, unlike litigation, the parties are in control of the process and, ultimately, the settlement solution. The settlement agreement often attaches no admission of guilt or fault. The parties can agree to outcomes that exceed remedies that could be provided by the court. Because there is no public winner or loser, no admission of fault or guilt, the parties can craft a solution that meets their individual needs and interests.
When surveyed, parties often report a better outcome as a result of mediation than they do from a civil trial process.
Because the agreement is between the parties and is not imposed by the court, compliance with the settlement agreement is quite high.