Mediation is a form of “alternative dispute resolution” (ADR). In California, most courts require the parties to go through some form of ADR before a case can get to trial. Accordingly, over 95% of cases filed in California are resolved prior to trial.
Mediation is process by which parties in a dispute have a chance to take a break, re-group, re-evaluate and come together as rational beings and focus on solving a problem; rather than perpetuating it through expensive and time consuming litigation. Mediation can happen at any stage of a dispute. I’ve mediated cases before they become lawsuits, and I’ve mediated cases while they’re already in trial. Most of the time, cases are mediated somewhere in the middle.
The mediation conference is designed to be a safe, respectful and constructive forum. The quality and depth of the communication that takes place in mediation would be close to impossible where people are otherwise embroiled in a contentious and litigious dispute. Sometimes we need a time-out to really listen, carefully consider what we’re fighting about, and figure out how to get what we want and need.
Mediation is a wickedly efficient way to resolve a dispute. It saves time, money and provides results that people can live with and agreements they can honor.
Simply put, a mediation conference is made up of a series of group meetings and separate meetings over the course of a half day or full day session with the mediator, and the parties and their lawyers (if lawyers are involved). Mediations can take many forms, depending on the type of case and as determined by the parties. Generally, I hold a short group session in a physical or virtual conference room with all the parties and their lawyers. The group session lets me clarify the process, and gives everyone an opportunity to be heard. Parties can share any information with the group that they feel comfortable sharing. My job is to facilitate that discussion in a way that keeps things constructive, remains respectful, and lets us discover some common ground. There are some situations where the parties can’t be in the same room at first, which is fine, and we make accommodations for that in separate conference rooms.
After the first group session, we begin private “caucus” sessions, where we explore the case in a deeper, and more detailed way with each party individually. This is generally where the parties feel more comfortable discussing the strengths and weaknesses of their case, and where they can talk about more sensitive and confidential information with me.
Through a series of these meetings throughout the day, we begin to work toward understanding and identifying areas of agreement. At some point offers and demands are exchanged and negotiated. More often than not, the mediation concludes with an agreement, which is enforceable in court.
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