The courts are one way of several the legal system uses to solve problems. Another is legal mediation, where the parties (and their attorneys) sit down with a trained mediator to work out their problems. The goal is to find “jointly acceptable resolution of issues in conflict.”
What Is Mediation Like?
Mediation is much less formal than the courts. You will meet at a neutral location to sit down and discuss the issues in dispute. A mediator guides your conversation and sometimes brings ideas or exercises to try. Mediation can improve relationships. Between 5% and 43% of litigants say their relationship with the other party improved.
Why Choose Mediation?
Mediation is faster and cheaper than going through the courts. You have more certainty and control over the process and can exercise more flexibility. There is less risk. If mediation fails, you can always return to the courts. Any party can declare the mediation failed.
What Types of Cases Are Good For Legal Mediation?
For legal mediation to work well, all the parties must want to reach a resolution rather than achieve other goals. Other goals include “winning,” getting back at the other party or getting full financial compensation. Mediation works for:
- international problems
- labor-management disputes
- neighborhood/community problems
- small claims
- schools and universities
- amicable divorces
Mediation is a superb choice where the parties must maintain a working relationship after they resolve the matter. The parties can work together to build a solution that is unique to them and works for both parties.
The courts can order parties into mediation. However, settling a case in mediation is always voluntary.
Why Use a Mediator?
A mediator trains to be neutral and to guide the parties in dispute towards a middle position, where everyone wins some and loses a little. Everyone should walk away a bit happy with the resolution that is not quite what they expected. The mediator can bring up new options that the parties have not yet considered.
Mediators receive specialized training in the skills of mediation. Some mediators are lawyers (with additional training), and some are from other walks of life.
What Are Some Concerns About Mediation?
Mediation is not the best choice if one party has clearly wronged another. You see few civil cases over criminal matters going into mediation. Those that work are for minor violations. A goal of meeting halfway just cannot work here.
Some other common problems include:
- parties not being prepared to go to mediation
- parties not understanding the process
- parties have unrealistic expectations
- parties can also come in lacking good faith
- the matter may be too emotional
Will Mediation Be Used Against Me in Court?
No. Mediation is private. The courts cannot open the records of your mediation file.
SOURCES:
American Bar Association. “In What Cases Might Mediation Be Used?” Sept. 9, 2019. https://www.americanbar.org/groups/public_education/resources/law_related_education_network/how_courts_work/mediation_whenuse/
Lande, John. “How You Can Solve Tough Problems in Mediation” 29 Michigan Dispute Resolution Journal, Issue 2, 11 (Fall 2021). https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3957580
Program on Negotiation Staff, Harvard Law School, “Does Lawsuit Mediation Really Work? Sept. 25, 2023. https://www.pon.harvard.edu/daily/dealmaking-daily/does-lawsuit-mediation-really-work/
U.S. Court of Appeals for the Fourth Circuit, “Preparing for a Mediation.” https://www.ca4.uscourts.gov/mediation/preparing-for-a-mediation
U.S. Department of Commerce, “Equal Employment Opportunity Mediation Guide.” https://www.commerce.gov/cr/reports-and-resources/eeo-mediation-guide/what-mediation
