Mediation

Mediation is a form of alternative dispute resolution. A neutral third party, called a mediator, uses mediation techniques to assist parties negotiate and reach an agreement. Mediation differs from arbitration in that the ultimate agreement is agreed upon by both parties, whereas in arbitration the arbiter often reaches a final decision. In the United States, the mediator does not direct the mediation, instead the mediator assists the parties in reaching a mutually agreed upon resolution.

Mediation can be an effective method to avoid litigation. It is not uncommon for litigation, from start to finish, to take up to one year and incur $30,000-50,000 in attorneys' fees and associated costs. Mediation minimizes these costs, and can be resolved quicker than litigation.

A final agreement in mediation is discussed and agreed upon by all parties, so the end result is something that is mutually acceptable. In litigation and arbitration, it is possible for there to be one side that "loses," and the other side "wins." In mediation, as all sides write and approve the final agreement, all sides "win."

The most common steps during mediation are as follows:

• The mediator introduces the parties, and establishes the rules for the mediation (which are suggested by the parties and the mediator)
• The parties then tell their side of the story, without interruption by the mediator or the other parties.
• The mediator asks some questions to clarify the facts and issues.
• The mediator identifies the underlying concerns and interests of the parties with respect to the dispute
• The mediator helps the parties discuss options that may resolve the dispute
• The mediator and the parties discuss the plausibility of these options, ultimately leading to one option that best settles the dispute between the parties
• Drafting an agreement by the parties, which fully sets forth the settlement between the parties

A downside to mediation is that is often difficult to reach a resolution that is acceptable to both parties. A competent mediator is needed to ensure that the mediator does not participate actively in determining the final settlement.

It is recommended to seek the advice of legal counsel before proceeding with mediation. While sometimes an attractive option, it may be detrimental to a party who would benefit from other legal avenues. Furthermore, an attorney can help you prepare for the mediation, and can identify issues and facts that support your position. The attorney can additionally help you identify items which are "inflexible" and should not be conceded.

Our law firm has experience with mediation. Our attorneys are trained as mediators. We invite you to come in for an initial free consultation. To contact us, fill out the form on this page or call us at 858-350-3124 (San Diego) or toll free at 800-361-1961.