THE BASICS ON MEDIATION

You have probably heard the word “mediation,” and perhaps you have questions about what it means and what it entails. Perhaps you have an ongoing case before a judge who has ordered mediation, maybe your lawyer mentioned mediation as a possibility, or perhaps you just heard about it from a friend or colleague. Maybe you’ve never heard of mediation and just so happened to find this blog post. Whatever the case, I hope to give you a little insight into what mediation is and how it works. This post will touch on just the basics about mediation so that you aren’t completely in the dark when and if you find yourself ordered to mediation or considering it as an option.

The process of mediation is relatively simple. You and the other party to the dispute will meet with a neutral third party. If the parties have attorneys, they may attend as well. The location for mediation is usually a neutral location, such as the mediator’s office or an off-site conference room. There will usually be a short session with all the parties and attorneys during which the mediation process is explained and introductions are made. Depending on the mediator’s preference and the matter being considered, the parties may then be separated into different rooms, with the mediator traveling between the parties and discussing the matter with each of them and delivering proposals from the parties. Such a mediation is called a “shuttle mediation.” In other cases, all the parties may remain in the same room where all negotiations will take place with the mediator facilitating the discussion, although the mediator or either party may request to talk about some matters privately if sensitive or confidential information needs to be discussed.

Mediation is a type of service that falls under the heading of “alternative dispute resolution.” Like many terms used in the legal field, that sounds really complex. All it means, though, is “ways to solve problems without having a trial in court.” Most mediators are also attorneys, but it is important to note that a mediator is not operating as an attorney during a mediation. The mediator may bring valuable legal knowledge and experience to the table, but the mediator does not represent either party. 

Mediation and other alternative dispute resolution (“ADR”) services are becoming increasingly popular, and there are several reasons why.

One of the biggest reasons ADR is becoming more popular is simply that courts are so overloaded. Many judges have such a large number of cases assigned to them that you may wait months for a court date. This is frustrating for the judges, for the attorneys, and especially for clients. Mediation is a way of lightening that load, and a mediator will most often be available well before a court date.

Mediation also reduces the procedural work in cases. To have a judge hear a case, first a Complaint must be filed, then the defendant must file an Answer after being served. This process alone can easily take a month or more. After that, attorneys will begin filing motions as necessary and conducting discovery, which is a process by which the parties exchange evidence and answer questions. Strictly speaking, mediation does not require any of those steps. Since most cases start in court before going to mediation, most people will have experienced part of this process before going into mediation, but private mediation is an option that does not require a case to be filed in court. Even if the case has already been filed in court, however, the parties can reach an agreement or at least get closer to a resolution. This reduces the work required in court. Evidence can also be discussed at mediation, allowing the parties to assess the relative strength of their cases and even prevent conflicts over particular pieces of evidence. That can mean your attorney will have fewer motions to file and that the judge will have fewer decisions to make.

Mediation is also private. Nothing said in a mediation is public knowledge, and your mediator has an ethical duty to treat all of the parties’ information as confidential. This can prevent embarrassing or private details of the parties’ lives from becoming a matter of public record. Most often, the final agreement will be converted into a court order that will be public, but none of the discussions leading to that agreement will be available in a court transcript or had in a courthouse that is open to the public. Furthermore, under Arkansas Rule of Evidence 408, anything said in a mediation is not admissible in court because mediation is an attempt to compromise. This confidentiality can allow for more open discussions. 

Mediators are neutral. Your attorney is your advocate and has a duty to zealously represent you. That means that your attorney is going to make the best case possible for you and will do their best to make sure that you win. Mediators, on the other hand, only seek to bring the parties to a mutually agreeable position. Even so, mediators don’t consider a mediation to be a failure if no agreement is reached. They are not representatives or advocates. Because your mediator is unconcerned with the concepts of “winning” and “losing,” they will give you a fair assessment of your case and try to bring you and the other party closer together, helping each side to see the merits of each other’s views and the problems with their own. In fact, even if no agreement is reached at mediation, many cases settle soon after mediation because of this additional perspective and understanding.

Finally, and most importantly, mediation leaves the power in the hands of the parties. It is a near certainty that you will not get everything you want in a mediation. The entire point of mediation is compromise. However, court cases are often an “all-or-nothing” proposition, and once a case goes to a judge or jury for a decision, you no longer have any ability to determine the outcome of the case. Mediation allows you to choose your sacrifices. In many instances, a party with a weaker case can come out better at the end of a mediation than they would if a judge or jury made the decision.

These are just a few benefits of mediation. If you need mediation or legal assistance, please give us a call. We’re eager to help you solve your problems.