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Mediation, what is it for, and when is it used? Hi everyone, EyenaN here. In a previous article, I went over depositions, and how to prepare for one. Today, we’ll be looking at what happens after deposition. But before trial, mediation. The most common form of mediation people might be familiar with is mediation in the context of divorce. However, it can be used for a variety of cases.
First, we need to define what mediation is. In short, mediation is a means for disputing parties to discuss their claims and issues with the help of an uninterested third party called a mediator in order to resolve the issues between them. Mediation is confidential. Meaning that people in mediation cannot discuss what happens at mediation.
It’s important to understand that the goal for mediation is not to award one side or the other, but rather to help both sides communicate and arrive at a compromise of some form.
When is mediation appropriate?
You may elect to undergo mediation at a starting point in your case, or the court may order you to go to mediation prior to trial. If both parties manage to come to an agreement, an enforceable contract will be drawn up and signed to end the dispute between them.
Why would you go through mediation?
As I said before, the goal of mediation is not to determine fault or guilt, but rather to allow both parties to discuss an appropriate solution. Sometimes, all that’s needed is a platform to lay out grievances, and guarantee each side’s positions are heard. In mediation, control lies with you and the other party, not with the judge or a potentially a jury.
Taking a case trial, while not only time consuming, is a big risk. You’re giving up your right to decide what happens to six strangers on the jury. There’s no guarantee that the solution provided by the jury will satisfy any party. Mediation allows for a chance to settle the dispute yourself before leaving it up to a judge, or a third party.
This is exactly why mediation is so prevalent in divorce cases. Divorce between a married couple is a very sticky situation. There are so many moving parts, whether it comes to property, or even more importantly, children. Most parents don’t want to leave decisions about the lives of their children up to other people.
So a mediation gives a divorcing couple the chance to speak and collaborate on a solution moving forward. Now that we know that a mediation is and the goals go into one.
What happens if you or the opposing party cannot come to an agreement?
Pretty simple, If it’s a court ordered mediation, the case will go back to the court, and be left up to the judge or the jury. If the case is not on litigation, the parties must decide whether to move forward with their claims. Now, let’s cover how a typical mediation breaks down.
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First, the mediator will introduce themselves, and discuss the rules and the goals of mediation. Next, an opportunity is given for each party to give an opening statement. This usually involves their concerns, positions, important facts, and a demand for what is wanted from the other party.
These opening statements are typically made by your lawyer if you have one. In some mediations, a mediator will try to facilitate a conversation between the parties after the opening statement.
But in many mediations, the mediator will caucus, or move each party into a separate room than moving back and forth between each, gathering information to see where there may be common ground for a potential resolution.
Whatever said in caucus is usually confidential from the opposing party, unless explicitly permitted. But it’s still a good idea to tell your mediator what you don’t want the other party to know. Your attorney may advise you to remain silent, and allow them to speak for you during mediation.
However, even if you agree to this, you may still discuss with the mediator at any time. Eventually, the mediation will end in one of a few ways. First, the party’s reach an agreement as to some or all the issues, and everybody signs an enforceable contract. Second, the mediator declares that the mediation has reached an impasse.
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An impasse essentially means that you, or the other party, or both refuse to continue discussing a solution. This could be as a result of rising emotions, or a fundamental disagreement. Third, the mediator will end today’s session, and set a date for the mediation to resume.
In some cases, if time runs out, each party’s attorney will agree on a time to continue discussing the case outside of mediation, or one party may agree to lead their offer open for a short period of time after the mediation ends.
I hope you found this Article on mediation helpful. If you enjoyed it, please remember to like, subscribe. Bye 👋👋👋
