A QUICK INTRODUCTION TO MEDIATIONby Eileen Barker, Esq. & Mediator
What is mediation?
Mediation is a voluntary process used to resolve disputes, which offers an effective and inexpensive alternative to litigation. A mediator, who is a neutral, objective third party, facilitates the process.
How does mediation work?
The parties meet with the mediator in joint and/or separate sessions. If they are represented, their attorneys can be present. The mediator helps the parties clarify the issues, explore possible solutions, and ultimately helps them formulate a settlement agreement. It is not the mediator's function to assign blame or determine who is "right." The sole purpose of mediation is to arrive at an agreement that is mutually acceptable to the parties.
When can mediation be used?
Mediation can be used at the early stages of a dispute to avoid a lawsuit, or as a means of reaching settlement once a lawsuit is pending.
What cases are suitable for mediation?
Virtually any type of dispute can be successfully mediated, including:
¨ . Contracts
¨ . Partnership
¨ . Employer/Employee
¨ . Real Estate
¨ . Non-Disclosure
¨ . Neighbor Disputes
¨ . Personal Injury
¨ . Property Damage
¨ . Insurance Claims
¨ . Probate & Trusts
¨ . Pre-Marital Agreements
¨ . Divorce & Separation
How is mediation different from arbitration?
In arbitration, the parties present their evidence and arguments to the arbitrator. The arbitrator has the power to render a decision, much as a judge would, and the decision is binding on the parties.
In mediation, the parties retain control over the outcome. The parties are free to agree or not agree to any particular proposal, and to formulate a settlement they believe is workable. The focus is not on persuading the mediator (because the mediator does not decide the outcome), but rather, on negotiating. Even if the parties are unable to reach agreement, the mediator cannot force a decision.
Can mediation be binding?
Yes, if an agreement is reached, it can be made binding. This is done by creating a written agreement setting forth the terms of the agreement, which each party signs. If a lawsuit is pending, the Court can enter the written agreement as a judgment.
What are the advantages of mediation over litigation?
Because the parties retain the power to resolve their own dispute, they are often able to devise innovative solutions that would not be available to a judge or arbitrator. In addition, mediation is a cooperative, rather than adversarial process. Thus, the relationship between the parties is more likely to be left in tact (or strengthened) as a result of mediation. Last but not least, mediation is faster and less formal, and therefore, generally much less expensive than litigation For example, even a modest lawsuit can take from six months to several years to complete, with legal fees of $25,000 to $50,000 (and up) for each side.
How long does mediation take? How much does it cost?
Most cases take a day or less to resolve, although complex cases can require longer. Fees for an attorney-mediator typically range from $150 to $250 per hour and up, and are usually divided equally by the parties.
© Eileen Barker, 1999. Eileen Barker is an attorney specializing in the mediation of business, real estate, employment and family disputes. For further information, call (415) 925-0900, orvisit her website.