What Is Mediation, and Is It Right for My Dispute?

Hello, my name is Spencer Pittman, and I am one of the litigation attorneys with the law firm of Winters & King.  This Winters & King Podcast episode is on a special type of alternative dispute resolution process called mediations.  An alternative dispute resolution (often called ADR) is a process used to resolve legal disputes outside of the traditional litigation process.  These alternative dispute resolution processes can be quicker, less expensive, and less formal than a full blown trial in court, and can be more effective in preserving business or personal relationships. There are several different types of ADR methods, including mediation, arbitration, and informal negotiations. Each method has its own unique advantages and disadvantages, and the choice of an alternative dispute resolution method often depends on the nature of your dispute and the preferences of the parties involved, among other factors. Today’s topic is on mediation.

Mediation is a process where a neutral third party, called a mediator, helps the parties involved in a dispute attempt to reach a settlement agreement to partially or fully resolve that dispute. The mediator is considered impartial and has no stake in the dispute except to try to accomplish an compromise agreement between the adverse parties.  The mediator does not make any decisions or judgments, but instead uses his or her expertise to examine the strengths and weaknesses of their respective cases, guide the parties into exploring creative options, and hopefully use persuasion to assist the parties to work together to find a solution to their dispute.

Mediations are often conducted in ½ day or full day sessions, meaning they can effectively achieve a resolution in a short period of time when compared to other forms of alternative dispute resolution, such as arbitration. In addition, mediation is less formal and less adversarial than traditional litigation in the courtroom. One of the primary advantages of mediation is that it affords the parties the right to control how the case is resolved without relying on random jurors or a judge.  The parties and their counsel involved in the dispute are encouraged to communicate with the mediator and work together to arrive at a solution rather than focusing on winning or losing the case.

The mediation process involving a legal dispute can occur before a lawsuit is filed, after a lawsuit is filed, or even to settle particular issues after a trial has concluded, such as a judgment amount. As mediation is a form of alternative dispute resolution that is most often used to resolve legal disputes during litigation in an attempt to resolve the lawsuit, the process of legal mediation may begin either when the parties voluntarily agree to participate in the mediation process or as mandated by a Judge in a court order.

Once the parties agree or are ordered to participate in mediation, they select a mediator to facilitate the process.  Most often the parties agree upon a mediator by proposing alternative choices.  Your legal counsel will consider various factors when determining which mediators to propose, including the mediator’s track record in prior mediations, how experienced the mediator is in the field of the dispute, the style in which the mediator conducts the mediations, and the associated cost with the mediation because most mediators charge by the hour, similar to many attorneys. For example, if the dispute to be mediated is a personal injury case arising out of an automobile collision, a mediator with decades of trial experience in that same field, either defending or prosecuting personal injury rights, would likely have the experience and background necessary to serve as an effective neutral mediator.  However, that same mediator with an extensive background in personal injury cases may not be the most well-suited mediator for a multi-party complex business dispute.

After the mediator is selected, the mediator may request mediation statements. A mediation statement is a written narrative drafted by the parties and sent to the mediator to explain their arguments and position on the dispute and what the party is seeking to accomplish with the mediation.  The mediation statement explains the facts of the dispute and may contain recitations of the law to apply to those facts.  The statement may also advise the mediator on the prior settlement discussions between the parties.  Sometimes, parties exchange mediation statements as a matter of transparency, but this is more of the exception rather than the rule. Exchanging mediation statements may cause the parties to not include as much information in their statements, and mediators often prefer candor and more information on the positions to effectively bring the parties to the bargaining table.

The mediation itself takes place usually at one of the lawyers’ or the mediator’s offices, or even at the court house.  The parties are separated from each other in different rooms and often times never see each other through the entire mediation process.  Some mediators employ what is called a “joint session” where the parties come together either in the beginning or the middle of the mediation to present positions or talk directly with each other.  Joint sessions should be used only in particular circumstances- they can encourage openness between the parties but may also enrage or cause frustration.

One of the key advantages of legal mediation is that it is a confidential process meaning the discussions and negotiations that take place during mediation are confidential and cannot be used against the parties in court. This can be particularly beneficial for parties who want to protect their privacy or save them from potentially negative publicity.  The process also allows the parties to hear from a neutral person the strengths and weaknesses of their case, which may encourage settlement or even enlighten parties into other legal arguments to assist in their claims or defenses.

Despite these advantages, there are also some potential disadvantages to legal mediation. One of the biggest disadvantages is that the mediation process may not result in a conclusion to the dispute.  If the parties cannot reach a settlement agreement, they may still need to go to court to resolve their dispute.  If the parties arrive at a settlement agreement at the mediation, the parties may be able to get the Court to require the breaching party to move forward with the settlement.

Another potential disadvantage of legal mediation is that it may not be appropriate for all types of legal disputes. In some cases, more informal negotiations between legal counsel can lead to a settlement of the dispute without the need for a neutral mediator thereby saving money for the clients.  A trial before the court may be necessary to resolve the dispute and determine the rights and obligations of the parties involved.

Whether mediation is an appropriate form of alternative dispute resolution for your particular dispute is dependent on many factors, including the facts of your case, whether either side has admitted to fault or liability, and the reasonableness of the parties and willingness to arrive at a compromise settlement agreement, among many other factors that should be weighed by experienced legal counsel.  If you are in a dispute or expect to go through a legal dispute in the near future, you should consult with an experienced attorney who can help you understand your rights and obligations and guide you through this mediation process.  The attorneys at Winters & King have been through countless mediations and aggressively advocate for its clients’ rights in the mediation process, including in the mediation statement.  If you want more information about mediations or other forms of alternative dispute resolutions for a dispute, call the attorneys with Winters & King at 918-494-6868.