Mediation is a voluntary process in which the parties to a dispute or lawsuit agree to meet with a professional mediator to resolve the matter and reach a negotiated settlement. The mediator is committed to being neutral and will not favor one side over the other. The mediator cannot provide legal advice to either side, but can offer his or her opinions regarding any of the issues involved in the dispute.
The mediation process is intended to be informal and low-key. No one will be asked to provide information they consider embarrassing or have to answer questions from the other side. In fact, you will be in a separate conference room and will not have to talk to, or even meet, the other side. The mediator will meet with each side in private. Usually a mediation will require the mediator to meet with each side several times before a settlement is reached.
All conversations in a mediation are confidential and private. The mediator will maintain strict confidentiality of all conversations and information provided during the mediation process. No communications or information will be provided to the other side without permission from your lawyer. The mediator will encourage you to feel free to speak privately with your lawyer at any time during the mediation -- simply ask the mediator to wait outside your conference room while you talk to your lawyer.
There are several benefits in taking advantage of the mediation process. Mediation allows each side to a dispute to have a measure of control over the outcome of the case. If the case cannot be settled at mediation, it will then proceed to a hearing before a judge or a jury. At that point the parties to a case do not have much, if any, control over the outcome of their case. Each side is at risk that the judge or jury will not decide the case in their favor --decisions by a judge, and verdicts by a jury, are often very unpredictable and harsh. There are also appeals to consider -- either side may appeal the decision of a judge or jury. Appeals can often take years to complete.
Mediation also allows the parties to be creative in how their dispute or case is resolved. This type of flexibility is not available if the parties decide to have a judge or jury decide the case.
Mediation also provides the parties with a way to resolve the case in a less stressful and more cost-effective way than taking the matter to a judge or jury. The expenses involved in taking a case to trial are usually quite high and usually you will not be able to recover many, if any, of these expenses.
It is often necessary for a mediator to ask each side to keep an open mind and consider compromise in order to reach a negotiated settlement. The mediator will ask each side in the mediation to compromise. Once a settlement is reached, a mediation settlement agreement will be prepared by the mediator to be signed by everyone who participated in the mediation. Once signed, the mediation settlement agreement is a binding contract, and neither side can back out of the agreement at that point. A copy of the agreement will be given to everyone at the conclusion of the mediation.
Most lawyers now use mediation as a way to help their clients reach a settlement. The reason mediation is so popular is simple -- it works. While some cases are not able to be settled during the mediation process, a substantial majority of the cases are able to settled through mediation.