What is mediation?
Mediation is a non-adversarial process in which a neutral mediator guides the parties toward a mutually beneficial resolution of their dispute. The mediator acts as a catalyst, helping the parties to reach agreement by identifying issues, understanding risks, exploring options, and weighing the consequences of not settling.
How does mediation differ from arbitration?
Arbitration is an adversarial process in which each side presents evidence. The proceedings are less formal than court proceedings, but the arbitrator, much like a judge, decides all questions of law and fact and imposes a decision on the parties. The parties relinquish control of the decision-making process and one side or the other is generally unhappy with the result. By contrast, in mediation the mediator helps the parties to decide for themselves whether and on what terms to settle. The parties in mediation remain in complete control of the decision-making process.
What are the benefits of mediation?
There are many benefits of mediation, including the following:
- Mediation is voluntary. Each party retains the right to withdraw at any time.
- Litigation can take on a life of its own. Early mediation can resolve a case before enormous amounts of time, energy and money are expended.
- In mediation, the parties decide the outcome. Mediation does not result in a decision imposed by a judge or an arbitrator.
- Litigation can be destructive to ongoing family and business relationships. Mediation can help preserve and repair valuable relationships.
- The use of a mediator promotes a reasonable dialogue by taking the bravado and posturing out of the settlement discussions.
- A skilled mediator can facilitate settlement by offering a safe outlet for the expression of emotions and by encouraging each party to recognize the interests of other parties.
- All communications in mediation are confidential and privileged and cannot be used as evidence in civil proceedings. Each party controls whether and to what extent matters disclosed to the mediator may be disclosed to the other side.
- Mediation offers a cost effective alternative when litigation costs appear to be prohibitive as compared with the probable outcome of the case.
In mediation, the parties can fashion creative solutions to their dispute and come away with benefits unavailable through litigation
What process is used in mediation?
While the circumstances of each case are different, mediation usually includes the following stages:
- Opening – in which the mediator explains the process and, where appropriate, opening remarks are made by each side to the dispute.
- Communication – in which issues are framed and the positions and interests of the parties are explored.
- Negotiation – in which options that will satisfy the parties’ interests and needs are generated and evaluated against the backdrop of the consequences of not settling the case.
- Closing – in which an agreement is reached and documented in writing.
Throughout the mediation, the mediator facilitates the process, meeting with the parties jointly and separately as the circumstances warrant and as the parties may request.
Is a settlement reached in mediation legally binding?
Yes. In California, the written settlement of a case pending before a court can be enforced by the court on motion made be any party. In cases not before the court, the settlement can be enforced like any other contract and the parties can agree to expedited procedures for enforcing the agreement.