When you have a legal disagreement with another person, you can file a lawsuit, gather evidence, and go through a trial, if necessary, in an attempt to get the outcome you want. Such an approach can, however, be time-consuming and costly. There are alternative forms of dispute resolution (ADR) that can save you time and money and limit the acrimony between parties. One of the most effective forms of ADR is mediation.
Civil disputes commonly resolved through mediation include contracts, consumer- and car-accident claims, employment claims (e.g., wrongful termination, discrimination, sexual harassment, ending a partnership), landlord–tenant disputes, real estate disputes, and family law disputes.
Mediation can take a variety of forms, but at its most basic level, it involves a structured process whereby parties to a dispute work with an unbiased or neutral third party in an effort to resolve disagreement. The person facilitating the mediation, known as the mediator, typically does not take testimony from witnesses (other than the parties) and does not consider or make determinations of law or fact. Instead, the mediator encourages open communication between the parties, with the goal of finding mutually beneficial ways to settle the dispute. Participation may be mandatory or voluntary, but the parties typically are not required to resolve a dispute through mediation. Judges sometimes require parties to engage in mediation before proceeding to resolve the dispute with a trial.
Every state offers some type of mediation as an alternative means of settling a legal dispute, though the precise mechanism for accomplishing that objective can look very different from state to state. Mediation generally takes one of two forms:
The impetus to use mediation as a means of resolving legal differences stems from the labor struggles and social unrest of the late 19th and early 20th centuries. As unions grew in power and influence, they started to use mediation as a way of establishing the terms of collective bargaining agreements. Because of the success of such efforts, unions began to use mediation to resolve other issues. In the 1960s, as court dockets became overcrowded, and legal proceedings were delayed months or even years, courts began experimenting with the use of third-party neutrals to find mutually beneficial solutions.
The common features of mediation include:
Mediation provides a number of benefits:
Once the parties have elected (or been required) to use mediation to settle their differences, they select a mediator and agree to the time and place for the mediation (often the mediator’s office or some other neutral location). Many mediators will ask the parties to submit information in advance, so that the mediator has some advance knowledge of the areas of dispute. Many mediators have an information form for parties to complete and submit.
At mediation, the process moves through the following stages:
If the parties agree on a solution, the mediator summarizes the agreement in writing. Each party signs the written agreement and may have an attorney review it. The parties also may create and sign a legally binding contract. If a court has required the mediation, the agreement of the parties will be filed with the court. If the parties do not reach an agreement, the mediator reviews the progress made, and the parties can meet again at another time, or they may decide to try arbitration or go to court.
The mediation process looks very different from an arbitration:
According to a study conducted by the Small Business Development Center Network, the potential success of mediation depends primarily on whether the proceeding is voluntary or mandatory. When judges compel mediation, the success rates are generally below 10%. Conversely, when the parties voluntarily enter into mediation, the dispute is successfully resolved more than 85% of the time.
When you have an unresolved legal dispute, you can take your claim through the traditional legal process, but you can expect months or even years before the dispute is settled. Traditional litigation can also be extremely expensive. Mediation can save significant time and money. Mediation also offers a better chance at a win-win situation, where both parties get some of the things they seek.
In the United States, mediation can take a number of different forms. In some jurisdictions, it’s done without the direct participation of attorneys, as the parties work directly with mediators to identify solutions. In other jurisdictions, a mediation can look like a mini-trial, where each party is represented by legal counsel who actively work to find a mutually beneficial solution. Unlike arbitration, the primary objective of mediation is to help the parties agree to a resolution. A mediator typically doesn’t take testimony and doesn’t rule on legal issues but acts as an intermediary between the parties to move them toward agreement.
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