Mediation is an informal and flexible dispute resolution process which is used to settle disputes between two or more parties. It is oftentimes used to settle lawsuits already pending in the court system, but is also used to resolve other types of conflicts between parties before a lawsuit is filed. Many courts utilize a mediation program to address pending cases. Sometimes, parties agree to privately mediate their pending disputes outside the court system.
The mediator is the person who conducts the mediation. The mediator is an impartial third party who facilitates communication and negotiations between the parties to assist and guide them in reaching a voluntary agreement to settle their dispute. The mediation process itself is, by definition, a voluntary procedure, that is, the parties cannot be ordered or forced to settle their dispute. The Court may order the parties to mediate, but the Court cannot order the terms of a settlement. The parties’ agreement to settle is completely voluntary. Unlike going to trial or arbitration where the judge, magistrate or arbitrator makes the decision, the mediation process allows the opportunity for the parties to shape and control the outcome of the settlement.
Several factors may provide the parties incentive to mediate. The mediation process removes the risk of submitting the dispute to a judge, jury, magistrate or other decision maker where the ultimate decision is unknown. If the parties can settle their case without going to trial, then a party eliminates the risk of losing his or her case or getting a judgment that is less acceptable than the negotiated resolution. Mediation also frequently reduces a party’s expenses in a lawsuit oftentimes saving the costs for legal fees, expert witnesses and other litigation expenses. In addition, mediation may improve the parties’ satisfaction with the Court system and potentially reduce future disputes. Moreover, mediation oftentimes eliminates the risk of having a judgment appealed and the time and money that would be required to proceed through the appellate process.
The Court provides the parties the opportunity to engage in the mediation process at no additional cost.
Most any civil case where the parties share a desire to settle their dispute before trial is a candidate for mediation. The exception is civil stalking protection orders. Civil cases of many types have been successfully resolved through the mediation process including, but not limited to, motor vehicle accidents, personal injury, property damage, medical malpractice, premises liability, foreclosures, business disputes, commercial transactions, insurance disputes, administrative appeals, class actions, real estate matters, workers’ compensation, land disputes, civil assault, defamation, etc….
A case may be referred to mediation at the request of any party or all parties, or by an order of the Court.