What is mediation?
Mediation is a form of alternative dispute resolution that attempts to help parties facing civil litigation improve communication, minimize harm, and find a compromise that is acceptable to all parties without going to court. A neutral third party-the mediator- assists the parties to negotiate a settlement in a variety of situations, such as legal or family matters. In effect, the mediator’s role is not to reach a decision, but to help the parties reach their own decision.
What are the advantages to mediation?
A mediator may charge a fee comparable to that of a civil defense lawyer, but the mediation process usually achieves resolution in a matter of hours or days, rather than the months or years it can take to resolve the issue in court. Usually the fact that involved parties are willing to negotiate means they are ready to find a solution sooner rather than later, which can save everyone involved time and money.
Mediation is also strictly confidential, which can be advantageous in a situation in which discretion is important. Mediation places such importance on confidentiality that in most cases the traditional legal system cannot force a mediator to testify in court. As a civil defense attorney in Orange County, I can tell you some mediators destroy their notes taken during meetings once that mediation has finished. The only exceptions to these stringent requirements are mandated reporting situations such as child abuse.
Thirdly, mediation is likely to produce an agreeable result for all involved because solutions that emerge are not controlled by a judge or jury. The extra room for discussion usually means both sides get more of what they want. In turn this increases overall satisfaction and further reduces costs because the parties don’t have to hire an attorney to force compliance with the settlement.
Finally, mediators are licensed professionals that are trained to work in difficult situations. Mediators are there to guide the parties to think “outside the box”, and their excellent communication skills are often able to preserve the relationship the parties had before the dispute.
What are some drawbacks to mediation?
Unfortunately, mediation does not always end in agreement. Parties might spend their time and money in mediation only to find they must have their case settled by a court of law. Therefore, opting for mediation does pose some risk. Further, if mediation fails, much of a party’s strategy for building a case to win in court may have already been exposed.
Mediation also lacks formal procedures and constitutional protections guaranteed by in court. Parties that exhibit a mismatched level of power or resources may not be able to find a fair settlement since the less well-positioned party can easily become overwhelmed. A timid party runs the risk of losing some of what is legally owed if the other party is aggressive and dominates the process.
Additionally, legal precedent cannot be set in mediation. Many discrimination cases, for example, are brought with the intention of not only satisfying the plaintiff, but also with hope of setting a legal precedent which will continue to have a greater social impact. This outcome can only occur if a high court, usually the Supreme Court, hands down a favorable decision on the main issue.
Lastly, mediation has no formal discovery process. If one of the parties in a dispute cannot fully address the case without receiving information from the other party, there is no way to compel disclosure of such information. The party seeking disclosure must rely on the other party’s good faith, which may not be enough.
If you need a civil defense attorney in Orange County to help you decide if mediation may be a good fit for your situation, give us a call today! We have professional and knowledgeable attorneys standing by to assist you in Fullerton, Brea, Placentia, or anywhere in Orange County. Contact us at (714) 525-5570.