Common Mediation Questions

Mediation is an ideal way to solve conventional legal disputes and can be a much less costly, faster and more pleasant approach than litigation. A lot of individuals aren’t familiar with mediation, nevertheless, and most individuals have questions concerning if the process is right for them. Below are some of the more commonplace mediation questions and the answers to them.

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Can my case be mediated?

In general, only civil cases are able to be mediated. The common exception is that specific non-violent criminal issues, like harassment, usually allow for mediation. General civil cases that are mediated comprise of business conflicts, landlord-tenant conflicts, small claims conflicts, divorce conflicts, child custody conflicts and contractual conflicts.

One of the main reasons to opt for mediation over commonplace litigation is if you are concerned about continuing an important relationship with the individual on the other side. Mediation is more co-operative, so it is a good option for disputes involving business colleagues, co-parents, or next-door neighbors.

Are there such circumstances where I shouldn’t think about mediation?

Even when your case is able to be mediated, you need to always question if it is going to be the best option given your aim and circumstance. Some typical reasons to not mediate could comprise of:

You feel strongly that the other party needs to have to prove their innocence or be found guilty. Mediation is going to typically not involve any kind of admission of guilt; rather, it is integrated more like a compromise.
You wish to convey an “implication” or create a legal precedent. Outcomes from mediation aren’t binding on other parties, so even when you mediate a successful outcome from a big company, it is going to have no impact on future cases towards them.
You assume a jury is going to be significantly sympathetic and grant you a large verdict. Mediation is a compromise, in and of itself tends to rule out significantly large settlements that juries can occasionally grant.

Do I need an attorney for mediation?

Mediation does not require an attorney; actually, part of the benefit of mediation is not having an attorney and the additional legal fees. Nevertheless, you might want to hire an attorney as a consultant to provide advice throughout the mediation which is largely less costly than hiring an attorney to litigate your case. Additionally, an attorney needs to generally be consulted with to discuss the outcome of the mediation and any settlement.

How long does mediation usually take?

Statistics show a lot of mediation cases last only a day or two. This is due to the fact that mediation is less burdensome than litigation, but also because individuals usually take small-scale disputes to mediation and save significantly large, complicated claims for litigation. Considerably large business and divorce and/or custody mediation might last substantially longer – possibly weeks – but this is still a lot faster than conventional litigation.

What does the mediation process usually look like?

Whereas there isn’t a formal mediation process, usually mediation is going to follow the below steps:

The mediator is going to introduce themselves and make some initial comments about the provisions and objectives of mediation.
Each party is given the chance to detail the dispute as they view it without disruption from the other party.
Dependent on the mediator and the parties, the mediator might then begin a mutual discussion with each of the parties present or might address each party privately, going back-and-forth, working out each of the issues.
Following the discussing of the issues with each of the parties, the mediator is going to typically bring each of the parties together to mutually negotiate a solution.
When the negotiations are successful, the mediator then is going to put the agreement in writing, recommend the parties to consult an attorney, and ask them to sign until their attorneys agree.
When the negotiations are not successful, the mediator is going to usually abridge the matters the parties did agree on and notify them of their rights moving forward.

Is mediation unbiased?

Mediation needs to result in an unbiased compromise, since both parties are more able to freely discuss possible problems (mediation doesn’t result in a public record unlike legal proceedings) and neither party is bound unless they explicitly agree to the suggested settlement. Meaning neither party is bound by the decisions of judges or juries, and only agrees to what the parties think is fair.

How can I locate a respectable, dependable mediator?

The type of mediator you choose should depend on the kind of dispute because most mediators specialize in certain areas. For example, when you have a localized dispute with a neighbor, a community mediation center could be the best place to locate a respectable mediator. When you have a complex business dispute, then bigger, national organizations like JAMS or the ADR may be a more suitable fit. Likewise, when you have divorce-related disputes, then you might want to choose someone that mainly handles divorce and is in your area. Findlaw offers links to a lot of mediators near you, so examine them to choose which is best suited for your dispute.

Is mediation different than arbitration?

Mediation and arbitration are likewise methods, with one considerable difference. A mediator usually doesn’t have the authority to make decisions without the consent of each of the parties. An arbitrator, at the same times, is similar to a judge and has the authority for making a decision over each of the parties without their approval. Therefore, because there is a lot at stake in arbitration, it usually follows a more court-like method with official provisions, the calling of witnesses, evidence presentations, official debates, etc.

Arbitration is more normal among large businesses and consumers where, as part of purchasing or use of a product, consumers sign agreements declaring they are going to arbitrate disputes instead of going to court. Many courts allow this, whereas others find this essentially unfair since arbitration provisions are usually set up to benefit businesses.

Source:

Common mediation questions. Findlaw. (2016, June 21). Retrieved October 19, 2021, from https://www.findlaw.com/adr/mediation/common-mediation-questions.html.

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