What is Mediation and Why You Should Care: Pros and Cons

Mediation?– What Is It & What Could Happen If You Mediate?

Mediation?is a private, confidential process where a neutral third person (a “mediator”) helps the parties try to resolve the dispute. The neutrals are retired judges, so they are familiar with the law and likely outcome should the case proceed. The parties have the opportunity to describe the issues, discuss their interests, provide each other with information, and explore ideas for the resolution of the dispute. Reaching a resolution in?mediation?is "voluntary" in that the parties are not required to come to agreement.

The mediator does not have the power to make a decision for the parties, but can help the parties find a resolution that is mutually acceptable. The only people who can resolve the dispute in?mediation?are the parties themselves.

There are a number of different ways that a?mediation?can proceed. Now, due to COVID-19, most mediations in California are conducted over Zoom. Most?mediations start with the parties and their attorneys together in a short joint Zoom session. The mediator will describe how the process works, will explain the mediator’s role and will help establish ground rules and an agenda for the session. Then, most mediators will move to separate sessions, shuttling back and forth between the parties in different Zoom breakout rooms.

If the parties reach an agreement, the mediator and attorneys write the agreement into a written contract, that would be enforceable in court.?

Potential Benefits

Having a mediator can be good, even if it doesn’t get the case settled immediately. Even if the mediation doesn't result in a same-day settlement, it often sets the stage for settlement down the road.

Mediators also often provide an honest assessment of how they think the case will shake out in court, pointing out both sides' risks to encourage settlement.

Another benefit is that?mediation?is less stressful than trial. It’s shorter, the parties don’t have to see each other face-to-face, etc.

Similarly,?mediation?is less expensive than a trial, so you could save yourself a lot of money (not including potential settlement costs).

Finally, if you can reach a settlement in?mediation, it could resolve the entire case more quickly than if you wait for trial. This is especially true now that California courts are seeing extreme delays due to COVID-19 closures that hit the "pause" button on most court proceedings, creating backlogs.

Potential Downsides

The main downside is the cost. To attend mediation, the parties usually have to pay a deposit with the mediator, split the mediator's hourly fee, pay their attorneys to write their mediation briefs, and pay their attorneys to attend the mediation.

Depending on the jurisdiction, the mediator's fee, and the attorney's hourly rates, mediation costs at least a few thousand dollars.

Conclusion

While the pros of mediation usually outweigh the cons, the determination can vary based on the parties' personalities and willingness to negotiate. Still, since mediation is strongly encouraged by the courts, parties should consider it as well.

If you want more information about how I can help you through the mediation process, feel free to message me on LinkedIn or through?my law firm's website?to set up a free consultation.

Disclaimer. This is not legal advice. I am "a lawyer" not "your lawyer."