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Mediation FAQ

Answers To The Most Frequently Asked Questions Regarding Mediation

1. What is mediation?

Mediations are an increasingly popular alternative dispute resolution (ADR) process sanctioned by the California courts. Mediation is a process by which parties in a claim or a lawsuit come together for a meeting in which they try to resolve their differences with the help of a mediator. The mediator and the parties work together to attempt to achieve a settlement or other resolution of the case. For people who are more familiar with court ordered settlement conferences, mediations are similar to a settlement conference, however, they usually last longer with the parties more involved in the process.

Everything that is said at mediation is confidential, and cannot be used against a party later in a lawsuit.

2. Is mediation a good idea for my case?

Usually. Mediations will generally help facilitate the resolution of a case, and, most parties in a lawsuit or potential lawsuit are better off having their case resolved outside of the courtroom. At mediation, the plaintiff has some control over the decision making. At the end of the day, the plaintiff can decide whether or not to accept the amount of money being offered by the defendant or insurance company. At a trial or arbitration, the amount of money that will be awarded to the plaintiff will be decided by a stranger(s), and it will be almost entirely out of the control of the plaintiff.

On the other hand, there are some plaintiffs who want or need their case to go trial, and there are some cases that are not “ripe” for mediation at a particular point in the litigation, particularly early in the case. The decision of when and whether to mediate must be made on a case-by-case basis.

3. How are mediators chosen?

Generally, the lawyers in a case get together and attempt to select a mediator that they are all comfortable with. Usually, this will be someone who is very knowledgeable on the subject matter of the case, skilled at mediation and considered relatively unbiased. Mediators can be either retired judges or practicing or retired attorneys.

4. When can a case go to mediation?

Anytime. A case can be mediated from the first day that all of the parties become aware of the potential claim up until the trial, after the trial, or even when the case is on appeal.

5. How much does mediation cost and who pays for it?

The cost of mediation will vary widely depending upon the billing practices of a particular mediator and the length of the mediation. Mediations can cost anywhere from several hundred dollars to $10,000 or more if the mediation lasts several days. Usually, the parties split the cost of the mediation (with the plaintiff’s attorney advancing the costs for the plaintiff), though, in some situations the defendant or insurance company is willing to pick up the entire tab for the mediation.

6. Where does meditation occur?

Just as mediation can take place anytime, it can also take place anywhere. Most commonly, mediations occur at a suite of offices rented by the large mediation providers. Usually, there is one large conference room and several rooms available for private “caucuses” (meetings between each party and their own attorney).

7. Does the mediator receive written information in advance of the mediation?

Usually, but not always. The usual practice is for each party to prepare a mediation brief summarizing the case. Depending on the complexity of the case, the brief can be a few pages long or hundreds of pages. Further, important documents and evidence will be attached to the mediation brief. However, exchanging briefs is not a requirement and some attorneys will prepare a brief but will provide it confidentially to the mediator and not to the attorney for the other side.

Generally, plaintiff attorneys will want the insurance adjuster, defendant and defense attorney to see their brief.

8. What happens at mediation?

Mediation can vary a great deal depending upon the style of the mediator, attorneys and the nature of the case. Most mediation begins with a “joint session” where all of the parties, attorneys and insurance adjusters meet in one conference room with the mediator.

The mediator describes the process that will be followed and then each side has an opportunity to present their point of view of the case to the other side and the mediator. The parties themselves can speak to the other side if they choose to. In cases in which there is extreme hostility between parties, such as cases of sexual abuse and exploitation, the joint session may be bypassed in order to protect the plaintiff.

If there is a joint session, when it is finished the parties and their attorneys go to separate rooms and the mediator shuffles back and forth from the rooms discussing important issues in the case and conveying settlement demands and offers.

9. How long does mediation last?

Usually, mediations are scheduled for a half day, full day or multiple days, however, they can end early or go very late. Mediations that began at 9:00 a.m. have been known to end after midnight. Other mediations may end very quickly if both sides can come to an agreement quickly or recognize that they are too far apart in their expectations for the mediation to be successful. Not infrequently, one or more future days of mediation will have to be scheduled before the case can settle.

10. What happens at the end of mediation?

If the case settles in mediation, normally a written settlement agreement is created at the end and signed by the parties, which becomes an enforceable contract. The agreement will list both monetary and non-monetary terms.

If the case does not settle, the parties will either decide to move on in litigation and maybe consider another mediation later or put litigation on hold and set another date for mediation.

Most legal questions require complex answers. The answers provided here may not be complete or fully accurate but attempt to provide consumers with abbreviated answers. For more detailed answers to these questions, a consumer should check out other articles in this section of this website, research other legal articles and texts on the subject matter or consult with an attorney.

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