August 2, 2018
Mediation is the process by which a neutral third party, the mediator, assists conflicting parties in resolving a dispute outside the courtroom. The mediation process varies among mediators, but common practice is for the mediator to separate the parties into different rooms while going back and forth between the two rooms to communicate offers and counter-offers, and to facilitate an agreement, reconciliation, or settlement between the parties. In today’s world, mediation offers numerous advantages as opposed to going to trial, only some of which are discussed below.
Generally mediation is a voluntary process where the parties, with the assistance of their counsel, are in complete control of the process. From selecting a mediator, to deciding on whether or not to settle, the parties call the shots. The parties can choose from a wide selection of mediators and can generally find a mediator specializing in the area of law specific to their case. (By comparison, in court, the parties are generally limited to the judge which is automatically assigned to the case.) Although a good mediator can bring valuable insight to the case, identify and narrow the issues, offer creative solutions, and help dissuade parties from unrealistic expectations, at the end of the day, the mediator has no authority to make a decision or order a settlement. At trial, on the other hand, a party’s fate will lie at the hands of a judge or an unpredictable jury. Additionally, at trial, a judge or jury can only award monetary and certain other limited types of relief. In mediation, however, the mediator can assist the parties in arriving at a variety of creative solutions.
Mediation is a relatively quick way to resolve disputes. Often the best time to conduct a mediation is before a lawsuit is filed. Whether the mediation takes place before or after the lawsuit has been filed, however, mediation parties can often achieve a settlement by the end of the day. At the close of mediation, the parties and their attorneys usually have a preliminary settlement agreement drafted addressing all of the essential terms of the settlement, which is signed by all parties. Although a more formal settlement agreement will surely be drafted later, having all the essential terms of the settlement flushed out in writing and agreed to at the mediation serves as a measure of finality for the parties. Litigation, on the other hand, is extremely time consuming . Parties can spend months or even years on a single case. Most civil cases filed in the Los Angeles Superior Court are being set for trial at least a year from the date the complaint is filed.
Mediation is one of the most economical ways for parties to resolve disputes. Depending on the mediator’s popularity, expertise, and experience, his or her hourly rate is usually comparable to that of an attorney. In many cases, parties can agree to split the cost of the mediator. Contributing to the cost of the mediator shows the parties’ investment in the case and willingness to come to a resolution. The cost of mediating a case is minimal compared to the costs incurred in litigation. Although parties can certainly mediate after a lawsuit is filed, by that time, parties could have already spent thousands, if not hundreds of thousands of dollars on attorneys’ fees, expert witness fees, court reporter fees, jury fees, and other related court costs.
While lawsuits are public record, mediation is almost always confidential. Any statement or admission made by a party at mediation cannot be used at trial, including terms of any settlement reached. This measure of confidentiality allows for parties to speak openly and freely with the mediator about their settlement tactics, financial position, litigation strategy, evidence or lack thereof, and other delicate issues. It also allows the mediator (especially one who is a practicing attorney or retired judge) to give his or her professional opinion as to how a judge or jury will respond to the party’s case. Mediators are at liberty to express any strengths, concerns, and/or weaknesses they see with a party’s position. A confidential settlement may also help preserve the parties’ reputations and their relationship with one another (and prevents friends and relatives from knowing they received a large sum of money).
When conflicting parties have reached a point where they’ve hired attorneys and imposed a threat of litigation, emotions will tend to be very high, even among the attorneys. Trial will only heighten these emotions, sometimes to the point of no return. By the time parties come face to face with each other at trial, they will most certainly feel emotionally and financially drained. They can even lose sight of the real issues in their case and instead be driven by ulterior motives. At mediation, there is no requirement for parties to come face to face with one another or speak directly to one another. It is possible the parties may never even see each other at mediation. Negotiating in this type of controlled environment can be less strenuous on a party’s health and emotional state. Although it is common for parties to come to mediation with feelings of anger and resentment toward each other, the simple process of expressing one’s story to the mediator can help diffuse any underlying animosities and help the parties concentrate on the important issues.
Unlike litigation, where the judge or jury imposes a verdict and the losing party is forced to comply, mediation empowers parties to pave their own path to a resolution. At mediation, any settlement agreement entered into by the parties is voluntary, and since the decision to settle belongs to the parties alone, they are more likely to adhere to the terms of the settlement agreement. Also, parties have the freedom to customize their settlement agreement to align with their own interests. At the end of the day, parties who are willing to compromise (despite paying a little more than expected or accepting a little less than they envisioned, in some instances) are in a better position to carry out the terms of their agreement without court intervention.
If you are interested in mediation or would like to learn more about Gayle L. Eskridge as your mediator, contact Eskridge Law today! Ms. Eskridge is available to mediate all types of employment, real estate, and business disputes, as well as elder abuse issues and attorney malpractice issues.
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ESKRIDGE LAW may be contacted by phone (310/303-3951), by fax (310/303-3952) or by email (firstname.lastname@example.org.) Please also visit our website at eskridge.hv-dev.com.
This article is based on the law as of the date posted at the top of the article. This article does not constitute the provision of legal advice, and does not by itself create an attorney-client relationship with Eskridge Law.