Mediation

mediateMediation is the attempt to settle a legal dispute through active participation of a third party (mediator) who works to find points of agreement and make those in conflict agree on a fair result. Mediation differs from arbitration in which the third party (arbitrator) acts much like a judge but in an out-of-court less formal setting but does not actively participate in the discussion. Mediation has become very common in trying to resolve domestic relations disputes (divorce, child custody, visitation), and is often ordered by the judge in such cases. Mediation also has become more frequent in contract and civil damage cases. There are professional mediators, or lawyers who do some mediation for substantial fees, but the financial cost is less than fighting the matter out in court and may achieve early settlement and an end to anxiety. However, mediation does not always result in a settlement.

What kinds of cases can be mediated?

Most civil (noncriminal) disputes can be mediated, including those involving contracts, leases, small business ownership, employment, and divorce. For example, a divorcing couple might mediate to work out a mutually agreeable child custody agreement, or estranged business partners might choose mediation to work out an agreement to divide their business. Nonviolent criminal matters, such as claims of verbal or other personal harassment, can also be successfully mediated.

Finally, you may want to consider mediation if you get into a scrape with a neighbor, roommate, spouse, partner, or co-worker. Mediation can be particularly useful in these areas because it is designed to identify and cope with divisive interpersonal issues not originally thought to be part of the dispute. For example, if one neighbor sues another for making outrageous amounts of noise, the court will usually deal with only that issue. If the court declares one neighbor a winner and the other a loser, it may worsen long-term tensions. In mediation, however, each neighbor will be invited to present all issues in dispute. It may turn out that the overly loud neighbor was being obnoxious in part because his neighbor’s dog constantly pooped on his lawn or his neighbor’s pickup blocked a shared driveway. Because mediation is designed to look at and fix the bigger picture, it’s a far better way to restore long-term peace to the neighborhood, home, or workplace than going to court.

How can I be sure mediation will produce a fair result?

In mediation, you and the opposing parties will work out a solution to your own dispute. Unless you freely agree, there will be no final resolution. This approach has several advantages over going to court:

  • Legal precedents or the whim of a judge will not dictate the solution.
  • If your dispute has undiscovered or undisclosed issues, mediation — unlike a structured court battle — gives you the opportunity and the flexibility to ferret them out.
  • Because mediation doesn’t force disputants to undergo the fear and sometimes paranoia of the courtroom — where a judge or jury can stun either party with a big loss — people who choose mediation tend to be more relaxed and open to compromise.

How long does mediation take?

Typical mediation cases, such as consumer claims, small business disputes, or auto accident claims, are usually resolved after a half day or, at most, a full day of mediation. Cases with multiple parties often last longer: Add at least an hour of mediation time for each additional party. Major business disputes — those involving lots of money, complex contracts, or ending a partnership — may last several days or more.

Private divorce mediation, where a couple aims to settle all the issues in their divorce — property division, alimony, child custody, visitation, and support — generally requires half a dozen or more mediation sessions spread over several weeks or months

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