Mediation has become very popular as a way to avoid the cost and expense of litigation (lawsuit).
Most of the time the parties have to agree to submit their dispute to mediation. Once the idea of mediation is agreed upon, the parties have to choose a mediator.
Usually the mediator is a retired judge of an attorney with at least 5 or more years of experience in the area of the dispute. For example, the parties to a real estate dispute would want a mediator who is knowledgeable about real estate matter.
The reason that mediation can be very effective in resolving disputes is that, unlike a lawsuit, mediation can be conducted in a half day or a whole day depending upon the complexity of the dispute at issue.
Each party, and his or her attorney, would attend the mediation (or conduct the mediation via zoom or another online vehicle) and the mediator would talk to both sides independently outside the presence of the other side.
If the dispute is settled at the mediation, the parties will enter in a written settlement agreement in which the terms of the dispute will be spelled out and each party will waive all further claims as to the dispute. If the disputed matter was in litigation at the time, the litigation will be dismissed once the terms of the settlement are completed. The dismissal will be “with prejudice”, meaning that lawsuit cannot be brought again.
Why would someone want to mediate? Many of my clients state they “want their date in court”. What most clients don’t realize that when they file a lawsuit or a defendant defends a lawsuit, the litigation process takes a long time to wind its way to the date on which the trial will occur. We are used to watching television or movies that involve trials, which resolve themselves in an hour, or in the case of a movie, in two or three hours. That is not the case in the real world. The Covid-19 pandemic has caused the court system to become painfully slow because of the need to separate people from each other in a courtroom setting and because the courts have been closed on an off while the court system figures out how to handle the work load and, at the same time, keep people safe
Many cases take 18 months or more before the case is ready for trial by a judge or jury.
Compare that time period with the ability, if both parties agree of course, to submit the matter to mediation. Further, the cost of a matter that requires perhaps 4 or 5 days in a court room (at say $450 or more per hour in attorney fees and daily charges for court reporting) without counting the costs and attorney fees incurred in order to get to the beginning court room hearing (discovery, depositions, expert witness, etc.) and the costs will run into the tens of thousands of dollars.
Because of the impact on court staff and judges, most courts encourage and many courts insist, that the parties attempt to resolve their dispute through mediation before being allowed to proceed to trial. And, all courts require a mandatory settlement conference before the trial begins. In other words, there will be pressure by the courts to resolve the dispute through mediation. All the more to attempt to enter into the mediation process sooner, rather than later.
Roger D. Wintle has been involved in hundreds of mediation, both as an attorney representing his own clients, but as a mediator helping attorneys to resolve their dispute through the mediation process.