Mediation - FAQ's
What kinds of cases can be mediated?
Most civil (noncriminal) disputes can be mediated, including those involving contracts, leases, small business ownership, employment and divorce. For example, a divorcing couple might mediate to work out a mutually agreeable child custody agreement, or estranged business partners might choose mediation to work out an agreement to divide their business. Nonviolent criminal matters, such as claims of verbal or other personal harassment, can also be successfully mediated.
Finally, you may want to consider mediation if you get into a scrape with a neighbor, roommate, spouse, partner or co-worker. Mediation can be particularly useful in these areas because it is designed to identify and cope with divisive interpersonal issues not originally thought to be part of the dispute. For example, if one neighbor sues another for making outrageous amounts of noise, the court will usually deal with only that issue -- and by declaring one neighbor a winner and the other a loser, may worsen long-term tensions. In mediation, however, each neighbor will be invited to present all issues in dispute. It may turn out that the overly loud neighbor was being obnoxious in part because his neighbor's dog constantly pooped on his lawn or his son's pickup blocked a shared driveway. In short, since mediation is designed to surface and solve all problems, it's a far better way to restore long-term peace to the neighborhood, home or workplace.
How long does mediation take?
Typical cases such as consumer claims, small business disputes or auto accident claims are usually resolved after a half day or, at most, a full day of mediation. Cases with multiple parties often last longer: Add at least an hour of mediation time for each additional party. Major business disputes -- those involving lots of money, complex contracts or ending a partnership -- may last several days or more.
Private divorce mediation, where a couple aims to settle all the issues in their divorce -- property division and alimony, as well as child custody, visitation and support -- generally requires half a dozen or more mediation sessions spread over several weeks or a couple of months.
How is mediation different from arbitration?
A mediator normally has no authority to render a decision; it's up to the parties themselves -- with the mediator's help -- to work informally toward their own agreement. An arbitrator, on the other hand, conducts a contested hearing between the parties and then, acting as a judge, rends a legally binding decision. The arbitrator's decision-making power may, however, be limited based on a written agreement between the parties. For example, the parties may agree that damages will be awarded in an amount between $200,000 and $500,000. Arbitration, which has long been used to resolve commercial and labor disputes, resembles a court hearing -- with witnesses called and evidence taken.
What are the stages of mediation?
While mediation is not as formal as going to court, the process is more structured than many people imagine. A typical mediation involves six distinct stages. Mediator's Opening Statement After the disputants are seated at a table, the mediator introduces everyone, explains the goals and rules of the mediation and encourages each side to work cooperatively toward a settlement. Disputants' Opening Statements Each party is invited to tell, in his or her own words, what the dispute is about and how he or she has been affected by it, and to present some general ideas about resolving it. While one person is speaking, the other is not allowed to interrupt. Joint Discussion The mediator may try to get the parties talking directly about what was said in the opening statements. This is the time to determine what issues need to be addressed. Private Caucuses Often considered the guts of mediation, the private caucus is a chance for each party to meet privately with the mediator (usually in a nearby room) to discuss the strengths and weaknesses of his or her position, and new ideas for settlement. The mediator may caucus with each side just once, or several times, as needed. Joint Negotiation After caucuses, the mediator may bring the parties back together to negotiate directly. Closure This is the end of the mediation. If an agreement has been reached, the mediator may put its main provisions in writing as the parties listen. The mediator may ask each side to sign the written summary of agreement or suggest they take it to lawyers for review. If the parties want to, they can write up and sign a legally binding contract. If no agreement was reached, the mediator will review whatever progress has been made and advise everyone of their options, such as meeting again later, going to arbitration or going to court. Why should I consider having my case mediated? If you’ve given up on negotiating a settlement of your dispute directly with the other party, mediation may be the most painless and efficient way to solve it. Compared to a lawsuit, mediation is swift, confidential, fair and low cost.
Mediation sessions are usually scheduled within a few weeks or, at most, a couple of months from the time of a request -- and most sessions last only a few hours or a day, depending on the type of case. In contrast, lawsuits often take many months, or even years, to resolve.
Another advantage of mediation is confidentiality. With very few exceptions (for example, where a criminal act or child abuse is involved), what you say during mediation cannot legally be revealed outside the mediation proceedings or used later in a court of law.
And mediation will nearly always save you money. In many parts of the country, nonprofit community mediation centers handle relatively minor consumer, neighborhood, workplace and similar disputes for free or for a nominal charge. Private dispute resolution companies tackle more complex cases for a fraction of the cost of bringing a lawsuit. A half-day mediation of a personal injury claim, for example, may cost each side about $500. By comparison, a full-scale court battle could cost $50,000 or more, sometimes much more.
Finally, consider that agreements reached through mediation are more likely to be carried out than those imposed by a judge. When folks go to court, the losing party is almost always angry and often prone to look for ways to violate the letter or spirit of any judgment. In contrast, a number of studies show that people who have freely arrived at their own solutions through mediation are significantly more likely to follow through.
What Will It Cost? In nearly all cases, mediating is far less expensive than going to court. Actual fees will vary depending on the type of case and who does the mediating. Here are some examples to consider. Neighborhood dispute Three neighbors are involved in a dispute over disruptive children. Mediation is provided by any of 400 nonprofit community mediation centers in the United States.
Typical length of mediation: full day
Typical fees per party: $10 filing fee (waived for financial hardship)
Personal injury claim A passenger in a car suffers leg and spine fractures when the driver hits a telephone pole. The passenger and the driver’s insurance company cannot agree on the amount of compensation for these injuries. Mediation is conducted by a private dispute resolution company.
Typical length of mediation: half day
Typical fees per party: $600
Business contract dispute A computer parts company sues Big Computer, Inc. for $5 million when Big C rejects parts which allegedly conform to a valid contract. Just before the trial is to begin, the parties decide to try mediation. Mediation is provided by a private dispute resolution company.
Typical length of mediation: four days
Typical fees per party: $8,000
Divorce mediation A divorcing couple with a house, two cars, bank accounts, pension plans and three minor children are trying to reach an agreement out of court as to the division of their property and the custody and visitation of their children. Mediation is provided by an independent divorce mediator in private practice.
Typical length of mediation: six two-hour sessions over two months, plus five hours to prepare a written agreement
Typical cost for couple: $2,215 (split 50-50)
How can I be sure mediation will produce a fair result?
Remember that in mediation, you and the opposing parties will work to craft a solution to your own dispute. Unless you freely agree, there will be no final resolution. This approach has several advantages over going to court:
- Legal precedents or the whim of a judge will not dictate the solution.
- If your dispute harbors undiscovered or undisclosed issues, mediation, unlike a structured court battle, offers the opportunity and flexibility to ferret them out.
- Because mediation does not force disputants to undergo the fear and sometimes paranoia of the courtroom, -- where a judge or jury can stun either party with a big loss -- people who choose mediation tend to be more relaxed and open to compromise.
Are there some cases that should not be mediated?
All parties to a dispute must agree to mediate, so if one party refuses or perhaps isn't competent to participate, the case cannot be mediated. Mediation may also not be the best choice if:
- One of the parties wants to set a legal precedent that interprets or defines the law according to its own point of view. Legal precedents cannot be set in mediation because mediation agreements do not establish who is "right" or "wrong," and mediation decisions apply only to the parties involved in that particular mediation.
- A person believes he or she can win a huge verdict against a big company (or even a small company with a big bank account or plenty of insurance). Because of the tendency toward compromise in mediation, hitting a legal "jackpot" is more likely in a jury trial.
- One person feels intimidated or intellectually overwhelmed by the other, in which case it's hard to arrive at a true meeting of the minds. It's often possible, however, to remedy a "power imbalance" by arranging for the more vulnerable person to participate with an advisor -- perhaps a lawyer.