What is mediation?

Mediation is a private process that parties elect in an attempt to resolve their differences or disputes.  It can help the parties prevent or stop the enormous expense and distraction of prolonged litigation, and increase the chances of the parties reaching an agreement regarding the outcome of the dispute.  The mediator is a neutral third party who does not have a stake in the outcome, but who guides and facilitates the parties’ discussions and negotiations to determine whether a resolution which will meet the basic needs and goals of the parties is possible.

What are the main reasons that parties mediate?

  • Cost considerations.  Mediation is generally cheaper than a prolonged legal battle, particularly if it is successful.  It can eliminate the need for continued expenses and fees in litigation and minimize costs in wrapping-up a dispute.
  • Information gathering.  During mediation, the parties have the opportunity to share their side of the dispute.  The process therefore usually provides valuable factual and legal information regarding their opponent’s position, which would not otherwise be available if the dispute continues in an adversarial proceeding.  It likewise provides the parties with an opportunity to tell others about their experience in the events giving rise to the dispute if they have not previously had the chance to share their perspective.
  • Lower risks with more control over the outcome.   Mediation gives the parties control over the outcome of the dispute, and gives them the freedom to negotiate terms and conditions of a resolution that would not otherwise be available in a court, administrative, or arbitration proceeding.  Thus, the parties do not risk “losing” their case if they are able to agree upon the outcome in mediation.
  • Less stress.  Although the mediation process itself can be somewhat stressful depending on the case, when parties can resolve their disputes, they are not subject to the prolonged and unpredictable stresses associated with an ongoing legal dispute.  The parties have the opportunity after a successful resolution to peaceably move forward with their lives and their business, rather than continuing to litigate issues of the past.
  • Faster resolution.  Mediation facilitates a finite resolution to disputes, with a specified plan and timelines for completion of settlement tasks.  Settlement agreements are typically completed within a week to a few months following the mediation.  In contrast, ongoing legal battles can take an unspecified number of years, depending upon the number of appeals and / or subsequent related proceedings arising from unresolved differences.  The uncertainty and time involved in ongoing disputes can be a tremendous strain, while mediation, which is not subject to appeal, provides a fast resolution with definite timelines.

Can what I say in mediation be used against me later?

No.  Mediation is a confidential process, and what the parties say in an effort to negotiate remains confidential.  Before the mediation begins, the parties must agree in writing that the mediation discussions are confidential, and that the mediator may not be called as a witness to testify regarding what was said during the mediation.  However, the parties also agree to be truthful during mediation discussions, and if they choose to share evidence regarding the case with the opposing party during mediations, that evidence may later become a part of the case.

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