Litigate or Mediate?
Mediation as an Alternative to Lawsuits
WHAT IS MEDIATION?
One often hears the term “mediation” in connection with resolution of disputes which have already become lawsuits, and, occasionally, before those lawsuits are filed. Mediation is a process by which a neutral third party called a Mediator hears a dispute between two or more parties and attempts to help the parties settle their dispute without judging the merits of the case. The term “mediation” is often confused with the term “arbitration.” Arbitration is another form of dispute resolution by a third party (as opposed to a trial before a judge or jury). The Arbitrator listens to the evidence presented by each party and then makes a judgment as to who is responsible for the claimant’s damages, and how much the responsible person must pay to the claimant, if any payment is due.
WHO CAN MEDIATE A CASE?
Mediators range in training from practicing attorneys, retired judges or other professionals to highly trained mediators who work full or part time in the specialized field of mediation. The right mediator for your case is one who demonstrates overriding neutrality in evaluating and resolving your case. The effective mediator will help the parties recognize the strengths and weaknesses of both sides’ case, so that at the end of mediation both parties are reasonably satisfied with the outcome. The effective mediator will also help parties consider the risks and costs of resolving a dispute before a judge or jury, without necessarily meeting the expectations of either party.
MEDIATE, OR LITIGATE?
Ninety-five percent of cases filed in the California court system settle before trial. Some settle early, others settle on the eve of trial or as close as after a jury is picked. The difference between the former and the latter is the amount of money and time a party will spend in getting from one point to the other. Depending on the type of case, the cost could range from thousands to several lacs of Rupees. Often, the costs are not recovered at the time of settlement. Thus both parties bear their own burden of costs.
Mediating a case before a lawsuit is filed enables the parties to present their case to a mutually selected neutral person (or in some cases two persons as co-mediators) before any money is spent on litigation. Many times the simple process of telling one’s story to a neutral willing to listen will take the parties a long way toward settlement. The cost of mediating a case (which can be as little as a few thousand rupees, or as much as several lac rupees) is minimal compared to the costs incurred through the life of a lawsuit.
WILL THE COURT MAKE ME MEDIATE?
In some cases, contracts between the parties require that a case be mediated and/or arbitrated. This is often occurs in medical malpractice actions, construction contracts, and real estate purchase agreement. In some cases statutes require pre-litigation mediation or alternative dispute resolution, such as in most types of homeowners association disputes. The excessive backlog in court calendars makes mediation an attractive alternative in other types of cases, resulting in the resolution of disputes in a timely manner, and avoiding the painstaking experience of costly litigation lasting up to five years.
HOW DO I START THE MEDIATION PROCESS?
If you have a dispute with another person or business, which you want resolved, you can first propose to the other side to mediate the case. If you are uncomfortable with that option, then you can make the first call to the mediator and ask the mediator to approach the other side with the invitation to mediate. A well-trained mediator can effectively maintain his or her neutrality during this process.
If you are not familiar with any mediators, you can call the local court and ask for potential mediators, or you can call your local bar association which often has a panel of mediators. Other possible sources are the Internet, as well as private mediation companies.
Select a mediator who has some familiarity with the area of law of your dispute (i.e., homeowners associations, landlord/tenant, business practices, construction disputes, family law, etc.) and someone in your geographic area. Ask the mediator what his or her fees are, and how much time he or she will allocate to your dispute. A good mediator will commit as much time as is necessary to help you resolve your dispute.
WHAT IF MEDIATION DOES NOT SETTLE MY CASE?
In most states, what takes place in mediation is confidential. For example, in California, the mediator cannot be forced to testify at trial as to what was said in a mediation hearing. Any offers made during the mediation process, and any concessions made, are confidential if the case doesn’t settle. Of course, certain limitations do exist in connection with protecting others from danger or imminent harm, or in connection with illegal activities. But, parties to most typical disputes over money or negligent conduct are generally protected by laws of confidentiality.
WHAT IS THE SECRET TO A SUCCESSFUL MEDIATION?
The mediation process is as successful as the willingness of the parties to participate in good faith to reach a settlement. A good mediator will work with the parties until he or she determines that a settlement cannot be reached at the time. Parties who consider what they have learned during the mediation process often reach a settlement after the hearing in order to avoid spending precious time and additional funds which may never be recovered at trial.