What Am I Supposed to Get From Mediation?
Credit: @joshappel
The Mediator is NOT Acting as a Judge - YOU are in Control of Your Outcome
Many people mistakenly believe that a mediator is someone who makes some sort of decision about the “case” or has a judge-like authority. However, this isn't true. In some cases, mediators are retired judges, and because of their background they tend to evaluate the parties’ case more directly. Although, it is important to know they’re not making decisions about how the parties try to resolve their dispute.
Mediators act as a neutral third party with their ultimate role being to assist the parties in:
Identifying the issues that need to be resolved;
Understanding each other’s circumstances and perspective;
Communicating to explore options; and
Aiding the parties in reaching a final agreement.
The Parties come up with their own solutions to the problem, as only they truly understand their own circumstances. The Mediator may offer some settlement ideas the parties may not have considered that might be useful, but this help can never consist of legal advice to either party, as the mediator must remain neutral and not put themselves in conflict. Once the Parties have reached an agreement, the Mediator (or the Parties’ attorneys) will often write a binding agreement for everyone to sign. If the Parties were already involved in litigation, the lawsuit will then be formally dismissed.
Alternatively, where the agreement is very informal or where the parties can only agree on part of the issues––or need time to determine information that could help resolve the matter––the mediator can help the parties come up with a memorandum of understanding containing what they have agreed to and how they will address the things they don’t. This is so that they can make progress tackling that goal, and can come back to mediation if necessary.
What Kinds of Things Can be Mediated?
Honestly, a lot. Most issues are perfect for mediation where there is a lawsuit involved, or one could be filed based on the circumstances between Parties. Additionally, sometimes mediation is used for personal or family disputes that may or may not have circumstances that could turn legal. Some other examples include neighborly disputes, informal separations where partners were never married, roommates disagreeing, and other types of relationship disputes. The disputes can be between two individuals, two businesses, individuals and businesses, between employer and employee, landlord and tenant, spouses, etc.
Some things that are not typically mediated, unless through a court or government-run program, include criminal cases and custody agreements where there is a pending Domestic Violence Restraining Order (DVRO), or some other unresolved issue touching on children’s well-being. In the instances involving children, courts have sole jurisdiction no matter what Parties agree to. Other situations may arise, however, such as an order that expresses a court’s sole discretion in making any changes to an existing agreement/order.
Using a Mediator Will Likely Save You TIME, MONEY, and ENERGY.
Litigation can often go on for years. Through working in the legal field and in the courts, I have come to realize that the average person has a very distorted sense of how courts work. Many people go into litigation hoping for their “day in court,” but do not understand:
How long it will take them to get there;
Hurdles they must overcome to prove what they need to prove; and
Judgment may not actually solve their problem.
For example, many people are unaware that the first assigned trial date is not necessarily when the trial will occur. Court calendar backups, discovery disputes, and motions going back and forth between the parties all contribute to long wait times for trials, particularly in the state of California.
A successful mediation can usually produce an agreement in the same day, or over the course of a few sessions in relatively quick succession. Most issues people end up in court for are what I call “time is of the essence” issues because they can’t really afford to wait the time required to either go to trial or dispose of the case. For many disputes, waiting this long would be very detrimental. This is a massive advantage of mediation. In my opinion, it is usually worth a try for this reason alone.
Not to be overlooked, significantly more energy––as well as time––is expended during conflict than when parties come to an agreement. This is time and energy you devote to thinking about the topic, trying to figure out what to do, financial and emotional stress you experience while these issues are ongoing, etc. It is significant because it is energy you start taking away from other things that are near and dear to you: your partner, children, business, leisure, family, etc. Litigation is very stressful and it isn’t uncommon for these issues to affect your personal and professional relationships. Many friends and family members can also become frustrated and stressed vicariously through hearing about your issues. It all has a cost and that is something very important to be mindful of.
Since you are saving time by choosing mediation, you are also saving the future cost of litigation. This is another aspect of the legal system that most people are terribly mistaken about. Paying a retainer to begin filing a lawsuit costs a lot of money. (In California, this will often be in the $5,000+ range.) What most people don’t know is it will likely be the first of many times they have to dig deep in their pockets for attorney fees, filing fees, deposition costs, expert witnesses, and more. If you are on contingency, your lawyer could be the best and fight hard for you, only to have the other party file bankruptcy or default on a judgment. So, even though you’ve “won” you don’t actually win much at all, and in some cases lose more than you gain. The good news is, people are statistically much more likely to follow through on a mediated agreement over a court order because they choose it themselves.
Most mediation participants report higher satisfaction rates than those who litigate. This is for many reasons, but I believe mostly because they take control over their own situation and don’t leave it to someone else to decide. Oftentimes, making compromises for the greater good of being able to walk away can feel bittersweet in mediation, however, the satisfaction of being done with a particular issue, and knowing what to expect next is priceless.