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What is Mediation?
Mediation is the process by which a neutral third party intervenes between two conflicting parties to promote reconciliation, settlement, or compromise. Mediation is an effective tool for resolving almost all civil (non-criminal) disputes. Mediation provides disputing parties with the opportunity to identify and cope with divisive interpersonal issues not originally thought to be part of the dispute.
Types of Cases that can be Mediated
Typical mediation cases often involve:
- Divorce settlements
- Child custody agreements
- Child support agreements
- Spousal Support/Alimony agreements
- Contractual disputes
- Landlord and tenant conflicts
- Employment disputes
Mediation vs. Litigation
Litigation, or a court trial, is more expensive then mediation. This is usually because litigation must go through processes such as discovery to gather evidence and information about the case, a process which requires time and money. Mediation also leaves the outcome of the case in the hands of the disputing parties rather than waiting on the word of a judge or jury. As such, the parties are often able to fashion a solution a court might not able to make. Mediation is also a private process; the parties need not disclose information to the public if they wish not to. Court trials, as a rule, must transcribe everything said onto the public record.
Mediation vs. Arbitration
A mediator normally has no authority to render a binding decision. It is up to the parties themselves with the mediator's help to work informally toward a mutually satisfying agreement. In contrast, an arbitrator, acting as a judge, conducts a hearing between the parties and renders a legally binding decision. Arbitration, which has long been used to resolve commercial and labor disputes, resembles a court hearing with witnesses called and evidence taken. Mediation lacks many of the formalities that an arbitration or court setting requires.
Disadvantages of Mediation
Although mediation has a number of advantages, there are some downsides to the process. First, since mediation is a private meeting without the formal rules of an arbitration or litigation, parties are often able to hide information or evidence they might not have been able to conceal in a normal court setting. Second, mediation assumes that the parties in dispute are equal in power. If one party is too passive or if one party was abusive in any way towards the other party, meditation cannot help assert the rights of the wronged party. This is why meditation is not used in criminal matters (among other reasons). Finally, if the mediation for any reason fails, the parties will have wasted time and money.
Additional Mediation Facts
- Mediation usually lasts a shorter time amount than a trial and can typically take anywhere from half a day to several weeks.
- Mediation is confidential and nothing said in mediation can be used in court if the process fails.
- Mediation is usually expeditious and cost-effective.
- Mediation is extremely useful in dealing with cases of a sensitive and personal nature, in which it is essential that trust and cooperation exist throughout the process.
Do I Need an Attorney to Participate in Mediation?
In most instances, mediations are conducted by lawyers experienced in the area of law you need help in. Lawyers in the mediation process also sometimes represent the individual parties, especially if the case involves substantial property or legal rights. It might also be wise to consult with a lawyer prior to engaging in mediation so you can understand the issues in your case.
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Last Modified: 01-12-2015 05:15 PM PST
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