Mediation & Benefits:
Mediation is a dispute resolution process that is an alternative to a trial. In mediation, the parties attempt to resolve their dispute by agreement with the assistance of a neutral third party—a mediator—who manages the exchange of information and bargaining. Thus, mediation is a facilitated negotiation.
Mediation is a speedy, hands-on process that can take anywhere from a few hours in simple cases to one or more business days in complex cases. Most cases are mediated in a single business day.
One of the key benefits to mediation is the ability for the parties to avoid the risks inherent in a trial. The cost of litigation is high, and often the greatest costs occur during the last 30 to 45 days before trial and the trial, itself.
Confidentiality is another important benefit to mediation. Mediation communications and negotiations are confidential and, to the extent the law permits, inadmissible in trial.
Mediation differs from Arbitration, which is a binding dispute resolution process in which a chosen or appointed arbitrator provides an award or decision, which is supported by the arbitrator’s findings of fact and conclusions of law gathered from the evidence presented.
In mediation, on the other hand, the mediator does not make binding decisions for the parties. If the parties cannot come to an agreed resolution of their dispute, the mediator cannot impose his or her own decision on the parties.
Initiating Mediation & the Mediated Settlement Agreement:
Sometimes a court orders parties to mediate before resorting to trial. Mediation is more often initiated by agreement of the parties. By agreeing to mediate, the parties tend to have more flexibility in selecting the mediator and scheduling the mediation.
If the parties reach an agreed resolution of some or all of their dispute during the mediation, the agreement is generally written up and signed or announced in court. Most often, a short agreement is written and signed at the end of mediation. The parties sometimes will then (with the assistance of their attorneys) prepare a more detailed written settlement agreement.
Regardless, a mediated settlement agreement is generally considered an enforceable contract. Because of its legal impact, and because the mediator does not provide legal advice to any of the parties, it is strongly advisable for parties to obtain their own independent legal advisors to review and advise them about the terms of any mediated settlement agreement before signing the agreement.