What is Mediation and Why You Should Care: Pros and Cons
July 27, 2021
Contributor: Claire Melehani
What Mediation? What Could Happen If You Mediate?
Mediation is a private, confidential process where a neutral third person (a “mediator”) helps the parties try to resolve the dispute. The neutrals are retired judges, so they are familiar with the law and likely outcome should the case proceed. The parties have the opportunity to describe the issues, discuss their interests, provide each other with information, and explore ideas for the resolution of the dispute. Reaching a resolution in mediation is "voluntary" in that the parties are not required to come to an agreement.
The mediator does not have the power to make a decision for the parties, but she/he can help the parties find a resolution that is mutually acceptable.
There are a number of different ways that mediation can proceed. Now, due to COVID-19, most mediations in California are conducted over Zoom. Most mediations start with the parties and their attorneys together in a short joint Zoom session. The mediator will describe how the process works, explain the mediator’s role, and help establish ground rules and an agenda for the session. Then, most mediators will move to separate sessions, shuttling back and forth between the parties in different Zoom breakout rooms.
If the parties reach an agreement, the mediator and attorneys write the agreement into a written contract that would be enforceable in court.
Potential Benefits of Mediation
Having a mediator can be good, even if it doesn’t get the case settled immediately. Even if the mediation doesn't result in a same-day settlement, it often sets the stage for settlement down the road.
Mediators also often provide an honest assessment of how they think the case will shake out in court, pointing out both sides' risks to encourage settlement.
Another benefit is that mediation is less stressful than trial. It’s shorter, the parties don’t have to see each other face-to-face, etc.
Similarly, mediation is less expensive than a trial, so you could save yourself a lot of money (not including potential settlement costs).
If you can reach a settlement, it could resolve the entire case more quickly than if you wait for trial. This is especially true now that California courts are seeing extreme delays due to COVID-19 closures that hit the "pause" button on most court proceedings, creating backlogs.
Even if you don’t settle on the mediation date, you may nonetheless make progress to be built upon in a subsequent negotiations. Alternatively, you may learn something important about the case which will guide you in determining whether or not to proceed if you’re the plaintiff.
Potential Downsides of Mediation
The main downside is the cost. To attend mediation, the parties usually have to pay a deposit with the mediator, split the mediator's hourly fee, pay their attorneys to write their mediation briefs, and pay their attorneys to attend.
Depending on the jurisdiction, the mediator's fee, and the attorney's hourly rates, mediation costs at least a few thousand dollars.
While the pros of mediation usually outweigh the cons, the determination can vary based on the parties' personalities and willingness to negotiate. Still, since mediation is strongly encouraged by the courts, parties should consider it as well.
If you want more information about how I can help you through the mediation process, feel free to message me through our website to set up a free consultation.
Disclaimer. This is not legal advice. I am "a lawyer" not "your lawyer."