What is Mediation?
Mediation is a type of alternative dispute resolution (ADR). ADR is a process where the parties come together to attempt to resolve their dispute without going to trial. It provides the parties with the opportunity to work together, with the assistance of a neutral third-party, to develop their own settlement.
The mediator’s role is to act impartially and independently. They shall not have any personal interest in the potential outcome. Their duty is to create an environment that encourages participation in the problem-solving process.
A mediator is not a judge and cannot determine the outcome of your case. The mediator is there only to assist the parties in reaching an agreement in a non-judgmental, respectful way.
When Should I Mediate?
In principle, parties can attempt mediation at any point during their dispute, even before legal proceedings begin. However, the best time to mediate is going to depend on the circumstances of your case. For example, in a divorce case, your divorce attorney will want to have all relevant information, such as financial information, expert reports, and children’s information, before engaging in settlement. However, if the matter is straight forward, such as a simple breach of contract or landlord tenant eviction issue, mediation can occur earlier. The key is to have sufficient information to be able to engage in practical, sensible, and informed decisions. The attorneys at Skulborstad Legal Group can help you decide when it is appropriate to mediate and can prepare you for your best outcome.
What are the Benefits of Mediation?
1. Settling a case in mediation can save you money
If you resolve your case through mediation, you could save tens of thousands of dollars by avoiding costly litigation. The more work your attorney does to prepare your case for trial, the more it will cost you. These include tasks that you probably are unaware of, such as entering into formal discovery to gather unknown information or to position you in a certain way; locating and interviewing potential witnesses; completing subpoenas; attending depositions; drafting position statements, etc. These things can very much add up.
The cost of mediation varies greatly. In Colorado, there are mediators that have agreed to work with the county at a discounted rate. This rate is currently $120.00 per hour, but is typically equally divided between the parties to the case, so $60.00 per party. Private mediators generally charge between $200 per hour to $350 per hour, but there are some that charge even more. This is a small amount to pay for one day, possibly two days, of mediation verse the cost of trial.
2. Speedy resolution of disputes
At times, it can take months over years for parties to have their case heard before a judge. However, if you are able to settle the matter in mediation, the case can be wrapped up as early as you can get into mediation.
3. The process is flexible
Mediation is a very informal process. There is no authority to decide the outcome of the case and no one to even compel the parties to settle. The process is non-binding until the parties agree on a resolution. Meetings can occur at any time and can involve the parties together or in separate rooms. Mediation can occur face to face or electronically. The parties and the mediators can form the process and meeting how they feel would be best.
4. Mediation is confidential
Confidentiality is at the heart of mediation and is critical to a successful resolution. Parties to a case must be assured that they can freely share sensitive information during settlement negotiations without fear that the information will be used to their detriment. In order to facilitate settlement, a mediator will ask the parties to be open, particularly when the other party is not in the room, and it is often these shared confidences that are the most helpful to the mediator in assisting the parties in creating a settlement agreement.
The confidentiality of mediation and settlement negotiations is protected in varying manners. It is protected by statute and in our court rules. For these reasons, the discussions that occurred during mediation are off-limits. In almost all cases, neither the parties, their counsel, witnesses nor the mediator can disclose to the court what was discussed.
5. Mediation is a way to evaluate your case and arguments
If you have a good mediator, they will often share with you their thoughts on the matter, whether or not your client or position is believable, and what they feel your strengths and weaknesses are. This information is shared to promote settlement, but it also give you some insight about how someone from the outside looking in may see your case.
What is the Mediation Procedure?
When mediation starts, the mediator may have the parties in one room or separate rooms depending on the level of conflict. The mediator will start by introducing themselves and then explain the process and what is expected of the parties. The mediator will also ask the parties to execute a mediation agreement. If the parties are in the same room, the mediator will establish some ground rules for conduct and expectations.
Once introductions and preliminary things are out of the way, the mediator will start by asking each side to present a statement on what they believe the key issues are and what the basis of the dispute is about. After this, the mediator will often conduct private meetings with each of the parties to gauge the parties’ expectations, determine the strengths and weaknesses of the case, and encourage each side to present offers and counteroffers in an attempt to reach an agreement. These meetings are confidential and the mediator cannot tell the other side anything you discussed without your consent. These discussions go back and forth until there is either an agreement or an impasse. If there is an agreement, a memorandum of understanding (MOU) or a settlement agreement is drafted and signed.