What is mediation?

In a nutshell, mediation is an alternative way to resolve legal disputes. It’s nothing new, but it has become fashionable in the last twenty years or so as the number of court cases (lawsuits) have proliferated and governmental budgets have contracted. Mediation is quicker, and more importantly, cheaper than a traditional trial on the merits.

It works like this. After a party files a lawsuit, both the plaintiff (the person or entity bringing the suit) and the defendant (the person or entity against whom the suit is brought) engage in what’s called discovery.  Discovery is when both sides exchange information each one knows about the case and conducts various investigations to unearth new evidence.

The lawyers then take this evidence and fashion it into a case. Each side hopes that its case is the most compelling based on the law and the evidence. After discovery is complete the suit is ready to be heard and ruled upon. But rather than take the case to a jury and or a judge as part of a governmental mechanism to resolve the case, the parties hire a mediator and engage in private resolution. A mediator is one person who will hear the case and then help the parties reach an amicable conclusion.

The mediator should be well versed and experienced in the legal field that governs the lawsuit and is usually a lawyer. Moreover, each side has a chance to propose a mediator and must ultimately agree as to who the mediator will be. The parties will split the cost of the mediator.

Mediation then occurs, usually on neutral territory. Each side presents its case, the mediator weighs the merits of the arguments and then helps the parties reach an amicable and hopefully just resolution.

It’s important to understand that the mediator does not make a decision for the parties, as a judge a jury might. Furthermore, the parties are free to leave the mediation without a resolution but will most likely still engage in negotiations after mediation has failed. Mediation can last from an hour to several days depending on the complexity of the case and the intransigence of the parties.

Many states now require mediation before a formal trial takes place, so engaging in mediation is not an option.

Is mediation worthwhile? Like so many other things in the law, the answer is: it depends on the contours of the case, but I would hazard to guess that in general, any mechanism that brings the parties together to hash out a resolution is a “good” thing.