From our experience, their seems to be a vast difference in the definition of mediation and the experience of participating in mediation because there are so many different areas of life that are conducive to mediation. For example, the mediation experience going through a divorce will be completely different than the mediation experience in trust dispute. The mediation experience via a local community mediation program will be completely different than the mediation experience with a retired Judge or veteran litigator.
Some mediators are aggressive and do not allow parties to talk to each other in the same room- other mediators allow the parties to lead the way and do not make judgement or assess blame. Some mediators appear informal and help people have a productive conversation about their needs and concerns. Other mediators are very formal and size up your conflict and telling you what they think about it. Either way, the mediator helps guide the Parties through the process. Very often, an agreement will result from the resolution of the conflict. The greatest benefit of mediation is that it is VOLUNTARY, meaning, you will not be forced to make an agreement.
For more information on the types of mediation, see the link on our “Resources” page.
Arbitration involves the presentation of evidence to an arbitrator or panel of arbitrators for a legally binding decision. Arbitration can be effective, but it is generally more time consuming and expensive than mediation, plus the parties give up control of the outcome (although high-low agreements can be used to provide a limited range for the decision).
In a judicial settlement conference, parties submit informal evidence to a judge for an advisory decision. However, any time an outside party is rendering an opinion, particularly about case value, there is a risk that one party will strongly disagree with the opinion and the other party will be locked in to a settlement at that figure. This can actually impair further settlement efforts. Remember that almost every case settles anyway, so the role of the neutral should be to help parties move toward settlement.
Agreements that are signed by both parties can often be legally binding. So, in essence, while you have received help from a mediator resolving your conflict, in reality, you CHOSE to resolve your conflict instead of letting someone else (such as a judge or a panel of arbitrators) decide for you. Said another way, Mediation is a process for working through conflicts, or disagreements between people. A third person (“Mediator”) who is neutral to your conflict helps you have a conversation about the conflict, find possible solutions, & try to come up with an agreement.
QUICK~ once both parties agree to mediate, mediation sessions can be scheduled quickly; as quickly as 1 week- 1 month. Nearly 1.4 million lawsuits are filed in California every year so do not anticipate your lawsuit will end very quickly (California Citizens Against Lawsuit Abuse 2012).
INEXEPNSIVE Lawyers charge by the hour & usually require a minimum of $5,000-$20,000 before they start working on your case. Most often, the amount of money you give a lawyer (“retainer”) is not enough to cover the cost of legal work, especially if you are pursuing court. It isn’t unusual for legal fees to range from $20,000-$60,000 & higher. With mediation, an entire conflict, no matter how complicated can often be completely resolved in the amount that you give the attorney to start your case (sometimes even less!).
CONFIDENTIALDocuments prepared for the purpose of mediation, documents created in the course of the mediation, & documents relating to the mediation are “privileged settlement discussions” are NOT admissible in any legal proceeding without the written consent of all parties. All statements made during the mediation are “privileged settlement discussions” & are NOT admissible in any legal proceeding without the written consent of all parties (CA.EVI. CODE, §703.5, §1115-1128). Confidentiality can be protected in mediation. Lawsuits do not provide for such confidentiality as parts of your case will end up as public records.
CONVENIENT mediation sessions can be sometimes be scheduled at any location that is convenient for parties, any time of day, almost any day of the week.
EFFECTIVE more than 90% of all mediations result in long-term resolution of mutual satisfaction. 95% of all agreements reached achieve lasting results (Los Angeles County Bar Association statistic, 2006). Even if you don’t settle the dispute in mediation, parties often settle the dispute after the mediation is over!
EMPOWERING with mediation, YOU are in control of the decisions you make, the information you share, & any agreement that may arise. You hold the power to unlock the conflict. Even if you spent eight hours in a room mediating, no one will force you to sign anything. If you change your mind before you sign, no one can stop you from ending the mediation session.
LESS STRESSFUL Feeling Furious? Anxious? Controlled? Trapped? Worried? Fearful? Mediation helps you resolve your conflict faster & in a more satisfying way so you can move on with your life more happily! Even if you win in court, you still lose out on a lot of time, money, & aggravation. Lawyers speak their own language which is difficult for non-lawyers to understand. The legal system is confusing & you have to pay your lawyer to explain the process to you. Mediation is YOUR process so you control how the process unfolds. You control when & where & how the conflict gets resolved. This gives you greater peace of mind.
#1-“The other side argues too much, mediation will be a waste of time.” Mediation is built for people in conflict! People that like to argue cost a lot of money in court but not in mediation. If they are arguing that means that they are sharing information-This is exactly what needs to happen in mediation to move things faster. So be sure to give mediation a chance and you might be very happily surprised by the results.
#2-“I’ve already tried to talk to them; they don’t want to work it out; it’s useless to try.” Mediators are trained neutrals; Even if you tried to talk to them, doesn’t mean that they won’t talk to a mediator! Sometimes people in conflict shut down but often a mediator can enable parties to communicate. Give mediation the opportunity to help you.
#3-“It’s too late, they already have a lawyer.” It’s never too late to mediate! The best time to resolve conflict is BEFORE a lawsuit is filed. The fresher the conflict the less people have their feet dug into their “position”. Mediation can be used at ANY stage of a conflict, even the night before trial. It’s NEVER too late to try to mediate.
#4-“I get upset or intimidated and I’m not comfortable in a room with them.” Besides situations of abuse (which are not appropriate for mediation), Mediators are trained to be sensitive to your needs & concerns. Even if you cannot sit in the same room with the other party, the mediator can still mediate using a variety of techniques.
In mediation, no one can compel (make) you say anything or sign anything, so know your rights before your session begins.
You have the right to be heard. Some mediators make “rules” to keep people from interrupting each other while other mediators do not. Regardless of who controls the process, you have the right to speak your mind.
You have the right to be free from coercion. Mediation is VOLUNTARY. This means that you do not have to accept a settlement if you don’t want to. Although there may be consequences you don’t like, you do not have to feel pressured into making a decision. If you want to schedule a further session of have post-mediation follow up, simply ask the mediator or your representative what this process would cost and how long it would take.
You have the right of confidentiality. There are laws that protect your information from being shared. The mediator cannot discuss your case, the mediator cannot be called to testify for or against you.
You have the right to stop the process. Mediation is VOLUNTARY. This is the only settlement process that has a built-in escape mechanism. If you feel that the mediation is not productive, you have the right to walk away, even in the middle of the session (however, you may lose some of your deposit and it could have consequences to your case, so weigh your options carefully)
You have the right to change your mind. Mediation is VOLUNTARY. This means that you can change your mind, you can ask for a couple of days to think about it, or you make sure the mediator has language built into the contract that gives several days to contemplate your choices before the agreement becomes enforceable.
You have the right to an attorney. Mediation is VOLUNTARY. If you begin the process and you feel uncertain about your rights, uncomfortable with the power dynamic, or intimidated in front of the other party, you have the right to withdraw from the mediation until such time as you get an attorney to represent you. THE MEDIATOR IS NOT AN ADVOCATE.
You have the right to choose. The benefit of mediation is that you are only limited by your own imagination. You can hear solutions of the mediator or attorneys but ultimately if you have a creative solution that works for you, speak your mind because YOU have the POWER to choose a resolution to your own conflict.
You have the right to take your time to carefully read the mediation agreement. The mediator’s agreement usually limits his liability so make sure to read the agreement carefully. If possible, ask the mediator for their agreement ahead of time so you can had it reviewed before getting into session.
Please feel free to email us with your questions, comments, or insights.
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