what is mediation

What is Mediation and is it Right for You?

By Helen Halldorsson, Esq.

What is Mediation?

Mediation (as well as arbitration) is a process for resolving disputes outside of court. In mediation, an impartial third-party (called a mediator) facilitates negotiation between the parties to a dispute. Compared to traditional court proceedings or arbitration, mediation is a less formal and generally faster method of dispute resolution. Usually, the goal of mediation is to reach a signed settlement.

When Does the Idea to Mediate Arise, and When Is Mediation  Practical?

Once the parties become aware that a dispute exists, they will typically begin exchanging information and evidence, and evaluating the claims. If a lawsuit has not yet been filed, this exchange can occur informally between the parties. If a lawsuit has been filed, this exchange occurs through a formal process called discovery.

Mediation generally becomes a viable option for reaching a settlement once enough information and evidence has been exchanged, and the parties have assessed the claims and defenses. Mediation is the most productive when both sides have sufficient knowledge to participate meaningfully in a discussion about the merits and value of the asserted claims. A dispute can reach this threshold before or after a lawsuit has been filed. If a lawsuit has not yet been filed, the parties may decide to mediate, with the understanding that a lawsuit will be filed if mediation does not result in a settlement. If a lawsuit has already been filed, the parties may decide to mediate after sufficient discovery has been completed, but before the case reaches trial. This is done in an effort to resolve the dispute before spending the time and money to prepare for and conduct a trial. 

In employment cases, the parties often bring lawyers in early on. Different lawyers have different perspectives on mediation. At Valerian Law, we will continuously evaluate the case and let clients know when mediation becomes advisable.

How Does Mediation Work?

Once it is agreed that the parties will go to mediation, the parties select a mediator and schedule a date for the mediation to occur.

Before the mediation, the parties may send the mediator a written submission (called a mediation brief), which is essentially a summary of their side of the dispute. The mediation brief helps orient the mediator on the factual background and substance of the dispute. The parties may or may not share their mediation briefs with each other, depending on the circumstances and the parties’ and mediator’s preferences.

The mediation then takes place at the scheduled time, usually on a single day with limited follow-up among the parties and mediator as needed. The parties are not required to interact directly with one another and may instead remain physically separated and convey all messages through the mediator. 

Usually, the end goal of the mediation day is a settlement agreement signed by all parties. If a full settlement agreement is too long to accomplish at the mediation, the parties who have reached a settlement in principle will sign a term sheet outlining the material terms of the settlement.

Who is the Mediator? What Is Their Role?

The mediator is a neutral third-party individual, usually selected jointly by the parties. Many mediators are current or former attorneys who are knowledgeable about the areas of law implicated by the dispute. 

The mediator’s role is to assist the parties in exchanging information and to facilitate the bargaining process by helping them find common ground. Mediators can help frame the issues, identify and relay each side’s strengths and weaknesses, highlight what is important to each party, and offer realistic solutions. If the parties reach a resolution, the mediator may also assist in drafting a final settlement agreement or term sheet.

What Happens After Mediation?

Mediation is non-binding, meaning (unlike in court), a party cannot be forced to accept an outcome that it is not satisfied with. If the parties reach a written settlement agreement in mediation, that agreement is typically enforceable. If the parties do not reach a resolution in mediation, they may decide to pursue other avenues to resolve their claims.

How Much Does Mediation Cost?

The cost of mediation can vary, depending on the experience level of the mediator, the type and complexity of the dispute, the anticipated length of the mediation, and the amount of follow-up needed from the mediator. In California, a one-day mediation of an employment dispute may cost a few thousand dollars. The parties can decide how the cost of mediation will be allocated between them.

Should I Mediate My Dispute? Do I Have to?

Mediation is usually voluntary but is sometimes mandated by law or court order. For example, mediation is commonly ordered in small claims court, family court, and housing court.

When it comes to employment disputes, mediation is generally voluntary. Many types of employment disputes may be suited for mediation, including claims of workplace harassment or discrimination, wrongful termination, retaliation, and failure to accommodate a disability. A mediator can help keep the parties at arm’s length. This is especially useful in situations where emotions may run high, such as when disputes involve sensitive topics or when there is personal tension between the parties.

When deciding whether mediation is right for your dispute, there are a number of factors to consider. First, while mediation may seem pricey, it is generally less expensive than either arbitration or going to court. The expenses of litigation and trial are much higher than mediation fees. Second, mediation is less time-consuming than both of those options. Third, the mediation session is confidential, which can be considered a pro or a con depending on your desired level of publicity. Some may wish to put the spotlight on an issue, whereas others may wish to handle things privately. Fourth, in mediation, the parties are in control of the outcome. They can decide the terms of any settlement reached and will not be surprised by what a judge, jury, or arbitrator decides. Fifth, unlike with court proceedings or binding arbitration, mediation is non-binding. This means that if the parties attend mediation and are unable to reach a mutual agreement, both sides can walk away without being bound by a decision they are unhappy with. Sixth, while the parties are in control of the mediation, the mediation process itself does not guarantee any resolution. This means that the parties may expend time and resources on a mediation (or multiple mediations) without reaching a settlement. This can happen when one or both parties stand firm in their position and are unwilling to compromise.

Consider these factors in the context of your situation to determine if mediation is right for you.

Do I Need a Lawyer to Represent Me in Mediation?

In many types of cases, including employment cases, it is generally not possible to set up a mediation without a lawyer. In such cases, your lawyer will most likely represent you in mediation.

However, if you are mediating in the context of small claims court, a housing dispute, or other situations where it is common for parties to represent themselves, you might not have a lawyer. In that case, you may but are not required to have a lawyer represent you in mediation. Lawyers provide value in mediation by helping you present your case in a persuasive manner and navigate the mediation process. 

If you have a dispute that may be suited for mediation or are considering hiring a lawyer, contact our experienced California attorneys who can advise you of the next steps. Call us at 888-686-1918 to speak with one of our mediation attorneys today.