What is Mediation?
Mediation is a form of alternative dispute resolution (ADR) in which a neutral third person helps the parties reach voluntary resolution of a dispute. It is an informal, confidential, and flexible process in which the mediator helps the parties understand the interests of everyone involved and their practical and legal choices. Mediation can help people resolve civil, family, juvenile and other types of disputes in a less adversarial setting. It has been shown to save parties time and money, improve satisfaction with outcomes, and reduce future disputes and offenses. Courts increasingly encourage mediation for a broad range of issues and case types.
The mediator helps the parties to:
• Communicate better
• Explore legal and practical settlement options
• Reach an acceptable solution of the problem
The mediator does not decide the solution to the dispute; the parties do. Mediation can result in a legally enforceable contract agreed to in writing by the parties.
Frequently Asked Questions (FAQs)
When is mediation appropriate?
Mediation may be particularly useful when parties have a relationship they want to preserve, as in cases involving disputes between family members, neighbors, or business partners. Mediation is also highly effective when emotions appear to be getting in the way of resolution. A mediator can often help parties communicate in a more productive manner and find common ground. Cases resolved through mediation often save parties thousands of dollars they would have otherwise spent on attorneys’ fees, court costs, and experts. It can also help spare parties the added aggravation of protracted legal proceedings.
When may mediation be inappropriate?
Mediation may not be effective if parties want their “day in court,” a judicial determination on points of law or fact, or if there is a lack of equal bargaining power (one party is more powerful); when there is a history of physical/emotional abuse, or the parties are not willing or able to cooperate with each other and the mediator to schedule the session, prepare for the session, or participate in the session in good faith and with an open mind.
Who must attend the mediation?
All parties, their counsel (if the parties are represented) and persons with full authority to settle the case must personally attend the mediation, unless excused by the court or mediator for good cause.
Is mediation confidential?
Except as otherwise provided by California law, all communications, negotiations, or settlement discussions in the course of a mediation or mediation consultation are confidential and are not admissible or subject to discovery. This encourages the parties to freely communicate when mediating resolutions to their disputes. The mediation participants may be required by the mediator to sign a confidentiality agreement.
What is the role of the mediator?
The mediator is a neutral intermediary whose role is to help the participants reach a settlement. The mediator will not impose a settlement, but will assist the parties in exploring settlement options. Generally, the mediator does not communicate with the court except, under some circumstances, to file a court form known as a Statement of Agreement/Non-Agreement at the conclusion of mediation.
How do I prepare for the mediation?
You and your attorney should be prepared to discuss all relevant issues in your case. You should be prepared to state your position and to listen carefully to the other side. Persuasive and forceful communication is permitted, but civility and mutual respect is vital. Hostile or argumentative tactics are likely to cause positions to become entrenched and thus discourage progress. Pre-mediation briefs may also be required by the mediator so that he/she can become familiar with the issues before the mediation begins. At times these briefs may be required to be provided to the other parties in the mediation, but the mediator may also allow the parties to provide additional written (or oral) statements that are only shared with the mediator.