FREQUENTLY ASKED QUESTIONS ABOUT MEDIATION
What is mediation?
Mediation is a process whereby the parties meet with a third party (neutral) mediator in a confidential session in an attempt to voluntarily settle their dispute, normally by a compromise agreement.
How is mediation different from arbitration?
Mediation is a confidential process where settlement is reached by agreement of the parties with the assistance of a neutral third-party mediator.
Arbitration is a trial-like process where a neutral third-party arbitrator decides who wins, much like a judge.
Do I have to mediate?
Normally yes. Most judges require mediation before they will allow you to try your case. (The reason is that most cases settle at mediation.)
Procedurally, how does mediation work?
Joint Session: Usually starts with a joint session wherein each side has an opportunity to present their case.
Private Sessions: The joint session is followed by private sessions with the mediator where the merits of the case are discussed and the parties work toward a settlement. The mediator goes back and forth between the parties until a settlement is reached or an impasse is declared.
Settlement Agreement: When a settlement is reached, the parties will draft and sign a mediation agreement which sets forth terms of the settlement and constitutes a formal contract, enforceable in court. All parties must sign this agreement. This agreement is normally followed by "form" releases and a notice of dismissal to the court.
Impasse: If the mediation impasses, the mediator will so notify the court. The mediation is confidential so the parties continue with their lawsuit as if mediation did not occur. The jury will never know there was a mediation.
How long does mediation last?
Mediation is typically scheduled for a half day (four hours) or full day (eight hours).
Be prepared to take as much time as necessary to reach a settlement. A common failing of lawyers and parties alike is to declare an impasse when settlement negotiations do not proceed quickly or when there is still a great distance between the parties after only a few offers and demands.
The mediation process takes time to work. It is not uncommon to spend all day hundreds of thousands of dollars apart, only to settle in a few giant leaps during the last thirty to forty minutes. This is not wasted time by any means. Rather it is time necessary for the parties (and counsel) to recognize and accept the need to compromise.