Dispute Resolution Procedures

MEDIATION

Goal:

The goal of mediation is to help parties explore options to reach a mutually satisfactory agreement resolving all or part of the dispute. There is no binding decision by a neutral, such as in arbitration. instead, there is a mediator, who tries to help the parties reach their own mutual agreement.

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Process:

Mediation is an informal and private process in which a neutral third person — a mediator — helps disputing parties discuss and evaluate options for reaching a mutually acceptable agreement. The mediator does not judge who is right or wrong or make decisions for the parties; the disputing parties create the agreement. Therefore, mediation is non-binding unless and until the parties reach an agreement. Mediation may be used before or after filing a lawsuit. The mediator, who may meet with the parties in joint and separate sessions, works to:

• improve communication between parties
• help parties clarify and communicate their interests and understand those of the other parties
• probe the strengths and weaknesses of each party’s legal positions
• identify areas of agreement
• help generate options for a mutually agreeable resolution

There are different types of mediation. Often mediators will not give an overall opinion about the strengths and weaknesses of each party’s legal position. However, by exploring the parties’ interests that may be entirely unrelated to the legal issues involved, the mediator helps broaden the range of possible resolutions beyond those provided by the lawsuit.

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Preserving the Right to Trial:

The mediator has no power to impose a settlement. A party’s right to obtain information and have court hearings on certain matters is preserved during the mediation process. The parties may agree to a binding settlement. If no settlement is reached, the case remains on the trial track.

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The Neutral:

Mediators for some court programs are provided by the community mediation centers or the courts. Additionally, parties may select mediators from the private sector.

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Attendance:

Insurers of the parties are strongly encouraged to attend the mediation session. Parties are strongly encouraged to participate actively in the mediation. Both may be required to attend the mediation. Requests to permit a client to be available by phone or Zoom rather than in person may be granted by the mediator.

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Confidentiality:

Parties may make agreements about confidentiality. Generally, communications made in connection with a mediation are not to be disclosed in subsequent proceedings, unless otherwise agreed, or in certain limited exceptions.

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Timing:

Mediation may be requested at any time during a case — before filing a case or after an appeal is filed. For some programs, the mediator may contact the attorneys (or parties representing themselves) to schedule an initial telephone conference or meeting. The conference may include setting the time, date and location of the mediation, and an exploration of ways to fully utilize the session. Small claims and residential landlord/tenant cases are usually mediated at court on the day of trial.

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Written Submissions:

Attorneys and parties may exchange and submit written statements to the mediator before the mediation. The mediator may request or accept additional confidential statements that are not shared with the other side. These statements are not filed with the court.

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Appropriate Cases/Circumstances

Many civil cases may benefit from mediation.  Cases may be particularly appropriate for mediation when:

• the parties have a continuing business or personal relationship
• the parties want a business-oriented or other creative solution
• there are multiple parties involved
• the parties seek a non-monetary solution
• communication appears to be a major barrier to resolving or advancing the case

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Cost:

Fees differ. There is generally no fee for mediation provided at the courthouse for small claims and residential landlord/tenant cases referred by judges.

 

Go to: Settlement Conferences