Chloe Meltzer | March 06, 2023
Summary: Mediation is a structured process negotiation process that assists two parties in coming to a resolution without having to deal with the court system.
In the United States, there are many federal and state laws that govern mediation. These laws are complex, but they regulate the relationship between mediation and the regular trial. Although alternative dispute resolution methods have been around for a while, mediation has changed over the years. More specifically, it's changed from an authoritative trial to dispute settlements. Here's everything you need to know about mediation.
Mediation is a structured negotiation process. A mediator is an independent person or entity who assists two parties in coming to a resolution. They will identify and assess all of the aspects of the dispute in order to attempt to negotiate an agreement. In the event they cannot resolve their issues and come to an agreement, the mediator may make the final decision. Mediation is an alternative to going to court and standing in front of a judge and jury.
Arbitration is another type of alternative dispute resolution that avoids going to court. However, arbitration is more similar to the court process because it involves a neutral third party who makes a decision after reviewing both sides of the case. In mediation, the two parties come to agreement on their own terms with the help of the mediator. This is the primary difference between mediation and arbitration.
Most cases are suitable for mediation. However, there are some matters which are more commonly mediated than others. For example, those mediated at the Federal Court level often include:
Some factors about your dispute might indicate whether or not it is suitable for mediation. These might include:
Choosing mediation over a traditional trial is beneficial in many ways.
Usually, if there is a dispute, it can be resolved much more quickly through mediation than trial. This allows both parties to get back to their daily lives sooner. No one wants to spend several hours in a courtroom over the span of several weeks, and even months. Mediation lets you avoid the backed-up court system and find a resolution faster and more efficiently.
If a dispute can be resolved through mediation, then the costs of going to trial are avoided. This includes paying a lawyer for their time, court filing fees, and any other costs associated with trial. Additionally, in many cases, the losing party will be required to pay the legal fees of the other party as well, which can increase fees tenfold. Mediation avoids the unequal distribution of costs and
Because mediation offers more control of the situation for the parties involved, it also offers more flexibility. Rather than having your fate in the hands of a judge, you have more control over the outcome. Mediation processes can also be customized to your needs based on who you are working with as a mediator.
Mediation is a less formal and less intimidating form of judgment than going to court. You do not need to prepare in the same way as you would when going to court, and overall it allows you to feel more relaxed as you negotiate a resolution.
Mediation is completely private. The judge is not informed of the contents of the mediation, and usually, it cannot be used in the trial should the case get to that point. On the other, all court cases are public knowledge with easily-accessible records online. Mediation allows you to maintain your privacy, which is important when dealing with sensitive topics like your finances. .
People who have resolved issues through mediation are typically more satisfied with the outcome of the case, because the two parties are able to discuss and agree on the outcome. This gives each party a sense of control in the process. Rather than wait for a judge to make a decision based on their own feelings, the two parties have a say in the matter.
Lastly, mediation brings finality. Settlement agreements can only be modified with the agreement of all parties.
During a mediation, the parties are in ultimate control of any decision used to resolve their dispute. While preparation is always good, it doesn't take nearly as much prep to attend a mediation hearing as it does to go to court. Of course, part of that preparation may include finding an attorney to represent you. With mediation, you don't have to worry about that.
While you might consider bringing in a lawyer, or someone who knows the laws of the court, it is not necessary. However, the court requires any attendee to be an authorized officer who is able to make a decision about how the dispute might be settled. Should it be a representative for an organization, they would need to be able to legally enter into an agreement on behalf of the organization.
Each state has rules or guidelines that pertain to mediators, however, there is no system to accredit mediators. JAMS Solutions, American Arbitration Association (AAA), and Forum, three of the leading alternative dispute resolution organizations out there, set qualifications for mediators. This can include professional experience and licenses, as well as the amount of training in mediation skills, or continuing education requirements. Typically, mediators are lawyers or former judges.
When parties decide to resolve their dispute through mediation, they select a mediator by agreement. Usually, this is done with an organization such as JAMS, AAA, or Forum. There is also the chance that you can choose from a roster of court-approved mediators. Because mediation is more informal than arbitration or litigation, it does not use rules of evidence or procedure. Instead, mediation can include a joint conference with the parties, as well as their counsel. Everyone will work to define the issue, and then work to come to a settlement. Here's a little breakdown of the overall process:
You can improve the quality of your mediation by considering a few things. First off, consider what issues are in dispute. You may also want to consider the facts, as well as sources of conflict. You should also be aware of what is important to you. What do you want to get out of the mediation, or what do you wish to preserve? Finally, decide what you will say at the start of the mediation, to assist in resolving the dispute, as well as your final statement.
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