Is It Time To Mediate?
Yes. Most cases can be mediated at any time, whether before or after a complaint is filed. Mediation is an excellent way to save time, money and mend relationships. Mediation is a method of Alternative Dispute Resolution (“ADR”), which is an alternative to resolving disputes through the courts. Other methods of ADR are arbitration and collaborative divorce mediation.
Mediation can be utilized in almost all legal disputes; such as, divorce (even post-judgment issues like college, braces, camps, etc.), contract disputes, auto accidents, slip and fall accidents, neighbor disputes, business conflicts and any other scenario when there are two opposing parties.
The mediator acts as a neutral third party who is trained to facilitate the communication between all the parties and assist them in settling the dispute. The mediator is usually an attorney (although some mediators are not) or a retired Judge. Some mediators are appointed by the court to conduct mandatory mediations and others do only private mediations, or both.
All cases are different and all mediators have their own way of facilitating a settlement. However, generally, mediators will have all the parties meet at the same time and discuss the overview of the case. Then, depending on the level of discord, the mediator may choose to separate the parties and talk with each side independently. All separate communications can be confidential between the mediator and each side. Further, the overall settlement discussions remain inadmissible in court if the parties do not settle the case and instead go back to court. The purpose of this level of confidentiality is to provide everyone involved with the level of comfort necessary for uninhibited free-flowing discussion.
Typically, the parties on either side agree to share the cost of the mediator, although there is no set rule on who pays. This could reduce the cost of litigation by more than half. Looking at the cost of divorce for example, often the attorneys for the husband and the wife are paid with joint marital assets (such as a retirement or savings account). In those instances, two lawyers are paid, as opposed to one mediator. Likewise, with two lawyers and court appearances, the number of billable hours for both attorneys can add up quickly.
When a divorce is mediated, it could be that the husband and wife attend the mediation session without lawyers and resolve all of their personal issues pertaining to their children, their marital home and alimony all on their own terms, with the mediator’s assistance. The outcome of the mediation is an agreement (on their own terms and not by a Judge who does not know them) that could then be brought to separate lawyers for review and conversion into a Property Settlement Agreement that becomes part of the Judgment of Divorce.
If husband and wife choose to have their lawyers come to the mediation, that is an option as well. When it comes to divorce, if the case settles in mediation, the parties could have potentially saved 100s of thousands of dollars that would have otherwise been paid to their divorce attorneys at the end of lengthy litigation, including trial.
The days of “then take him/her to court” are coming to an end. The courts actually impose a mandatory mediation panel attendance at some point during litigation. Sometimes, those sessions are fruitful, but there are three mediators and the time and commitment to settling the case is not the same as going to a private mediator.
Mediation is not a therapy session. Rather, it is a way to quickly tackle the issues that would otherwise be handled in court and could take years to resolve. Further, the issues are decided by the parties who know their situation the best, instead of relying on a judge or jury who do not know the parties or their children . If there is a resolution and settlement, the case can end that day, which ends the anguish of lengthy, costly, and stressful litigation.
This outcome is one that bodes well for a future relationship between the originally feuding parties. In the case of a divorce with children, this could be the best way to ease tension and animosity, which will in turn lead to a better co-parent relationship, ultimately benefiting the children.