What is mediation?

When someone becomes involved in a civil lawsuit, they often hear their attorney start talking about mediation. Mediation arises in almost every civil case. Yet, mediation is not always understood by the parties, and can sometimes even be confused with arbitration. I hope to explain a little about mediation in this post.

Mediation is where the parties meet with a neutral third party to discuss resolution of their dispute. The goal of mediation is to help the parties resolve the lawsuit through negotiation, comprise and voluntary settlement. In many cases, the parties are able to reach a negotiated resolution at the mediation, get settlement terms in writing, and eventually enter a formal settlement agreement and dismiss the case. The following questions and answers are helpful in understanding mediation better.

Q. Is mediation mandatory?

A. Sometimes mediation is mandatory. Other times it is not. It depends upon the court. Courts often promote or require mediation because it results in resolution of the cases.

Q. Is mediation binding?

A. No. Mediation may lead to a voluntary settlement where a written agreement is reached. However, if the parties never reach agreement on settling, they are able to walk away from the mediation without any impact to their case.

Q. Is mediation confidential?

A. Yes. However, the mediation settlement agreement can often be filed in court.

Q. Will I have to sit across from the opposing party at mediation?

A. No. During mediation the parties are separated. They sit in separate rooms and the neutral third party goes back and forth between the rooms. Unless you run into the other party in the lobby or elevator, you may never see them.

Q. Who is the neutral third party?

A. The neutral third party is usually another attorney or retired judge. The parties pick the neutral third party.

Q. Who pays for mediation?

A. The parties usually pay 50/50 for the mediator fees.

Q. How long does mediation last?

A. It depends upon the complexity of the case and the amount at stake. I have seen it last anywhere from a couple of hours to all day and into the late evening.

Q. Can I mediate before the case is filed?

A. Yes, if the other party agrees, or there is a contractual right to pre-suit mediation. However, most mediation takes place after the parties have had some time to learn about the claims and defenses in the case and the evidence that will be presented.