What is Mediation?
Mediation is a style of dispute resolution in which the parties to a dispute work with a trained and neutral mediator. Mediation is confidential, voluntary, and self-directed by the parties themselves, with the goal being an agreement that settles their argument and lets both parties move on with their lives.
Mediation is very different than litigation, which is what happens when a party files a lawsuit and goes to court. In litigation, the process is lengthy and, largely, involuntary. If a court tells the parties there will be an initial hearing in 8 months, there is very little either can do to have their hearing sooner. In litigation, neither party directly contacts the other party; they communicate, if at all, through lawyers, which is of course expensive. Most importantly, it can take literal years for even simple cases to be fully decided by a court, and, once the decision comes, it may not address the needs of the parties.
Get a Good Solution - Mediate
One of the biggest strengths of mediation is the ability to craft better solutions. Consider a divorce: you’ve been very, very close to a person and are suddenly faced with the end of that relationship and a series of huge changes to your life. The court, faced with a contested divorce, can really only provide for payments from one party to another and some limited and fairly formulaic orders about children, if relevant. The court cannot and will not tell you whether the family dog will stay on the special food the vet prescribed, or or how joint membership to a local health club will be handled, or, and this is a big one, whether there’s any way for a family business to continue once the principals are divorced. For all of those questions, the court calls on mediators.
In mediation we can work with both sides, and we’re generally the only party who can do that. Lawyers are paid advocates who must only put forth the interests of their clients. Our job is to be able to get all the facts, all the feelings, all the history from both sides and help find a solution that works for both. This also helps both sides avoid the big danger of litigation, which is:
What if You Lose?
No decent attorney will ever guarantee victory in court, especially not lately. Even a very, very strong case may not win, and even if the court orders the parties to reach an agreement, the agreement may not reflect the actual problems. It is very, very common for people who have a contested divorce to be right back in court very soon, and when businesses or landlords and tenants get a bad final order from a court, it’s extremely common to see another suit, another counter-suit, another expensive journey into litigation.
In mediation, you have complete control over the terms of an agreement, and, in the rare case in which it doesn’t work out or you have a similar problem with the same person, you can still go to court later on. Mediation is a chance to work with trained people to try to get an agreement that works for you, and avoids the time and money and drain of court.
What if the court
ordered me here?
At this point, in California, most cases of most kinds will have to go to some form of dispute resolution. There is some kind of mandatory settlement ordered in civil cases, in landlord/tenant courts, in the vast majority of family law cases, and in most personal injury.
The courts simply don’t have time to hear all cases with a full jury. Courts order cases to mediation so that the parties can attempt to settle, and in the hope that, at the very least, there will be less elements of a case to fight over if the case has to come back to court. Consider: over 80% of cases that go through mediation settle entirely. In a court trial, 50% of the litigants lose.
Court-ordered mediation is largely the same as private mediation, in the sense that both parties will present their side, talk through their evidence, and have the chance to craft a good agreement. Sometimes, court ordered mediation can be faster, since the work that’s already been done in litigation doesn’t need to be duplicated here.