Summary: Mediation is an alternative dispute resolution method where two or more disputing parties come together to discuss and reach agreement in a dispute situation without the use of courts. Mediation is generally conducted by a professional mediator or neutral third party. In mediation, all participants in the mediation are eligible to participate in the negotiation process.
Generally, mediation does not involve trial; it’s a form of conciliation. Under normal circumstances, a person would have to appear for trial, but mediation instead uses a “trial-like” format where the parties simply communicate their positions to the mediator, present their case and offer some evidence to assist the mediation process. The trial could be court proceedings, which a plaintiff would need to file a lawsuit in, or a procedure where the matter would be tried before a judge through a jury trial. However, in mediation, both parties can have their cases tried by just one court official who then renders a decision. This is different from customary litigation, in which two lawyers usually decide the case, often making their decisions based on personal injury law experience and prior case law precedents.
Because mediation is not a trial, both sides usually end up with a settlement that satisfies their legal rights. For instance, if a plaintiff files a wrongful death action in a court, the plaintiff would have the opportunity to take his case to trial, but mediation may influence the amount of settlement the defendant is able to offer. In some instances, the jury might decide the case is not worth pursuing because the plaintiff did not show enough evidence to prove the case beyond a reasonable doubt. When this happens, the court might choose to dismiss the case rather than allow it to go to trial.
Conversely, the defendant might not wish to put a trial in front of a jury, as it might not be in their best interest to pay a large damages judgment. If the case were to go to trial, the plaintiff would still have the opportunity to get his or her attorney fees paid, along with any punitive damages awarded by the jury. A judge will usually appoint an attorney to mediate between the parties, and they normally render a decision after looking at all the evidence and testimony. The decision generally makes a permanent or temporary agreement that is forwarded to the parties for approval.
In some instances, the mediator might order one party or the other to stop paying certain bills, such as alimony or child support, because the parties did not agree to the proposed settlement during mediation. Mediation does not always result in a settlement, though. For instance, the parties may agree to settle minor disputes without going to trial, such as disagreements over the division of property or child custody.
Mediation is usually much less expensive than going to court, because attorneys’ fees are typically included in the expense of getting a trial. Attorneys generally do not require any fee unless the mediation results in a court decision. If the parties decide not to go to court, and then mediation does not resolve the dispute, then the attorneys normally charge a referral fee. However, if both parties agree to resolve the dispute through mediation, then the parties typically pay nothing unless the mediation results in a court decision.