When dealing with a legal dispute, going to court is often undesirable for everyone involved. As a general rule, it costs more and takes longer than achieving an out-of-court result, and no one is guaranteed a favorable outcome. The losing party can file an appeal, and it can easily take a year or longer before the dispute is finally put to rest.
While negotiating a pre-trial settlement is always an option, it is a more realistic option in some circumstances than others. If the parties are unable to find common ground, then at some point, further efforts to compromise will become futile. But, this does not necessarily mean that the parties are destined to end up in court. In many cases, utilizing mediation will allow parties to get past their differences and arrive at mutually-agreeable terms.
What Is Mediation?
So, what is mediation? Mediation is a form of alternative dispute resolution (ADR) in which the parties retain complete control of the outcome. The parties continue their negotiations but do so with the guidance of a neutral third-party “mediator” who they select in advance. This selection can either be made passively (i.e., by choosing a mediation service provider which subsequently assigns a mediator) or actively (i.e., with the parties agreeing on a specific mediator, or with the parties appointing surrogates to choose a mediator on their behalf), and both parties can have equal say in deciding who will help them resolve their dispute.
Mediation is an option for resolving all types of legal disputes. This includes disputes between family members, between landowners, between businesses, and between business and their customers. Some examples of the types of disputes that are frequently resolved through mediation include:
- Divorces and separations
- Child custody disputes
- Child support and alimony disputes
- Estate and probate disputes
- Boundary disputes
- Contract disputes
- Personal injury claims
How Does Mediation Work?
A key aspect of mediation is that the mediator does not serve as a decision-maker. This distinguishes mediation from litigation and arbitration, which is an entirely different form of ADR. Instead, the mediator serves in the capacity of a facilitator, helping the parties to:
- Clearly explain their respective positions;
- Clarify any issues that may have previously created confusion;
- Understand one another’s perspectives;
- Find common ground; and,
- Explore previously-unconsidered solutions for reaching an agreement.
Mediation can take place in a single session, or it can take place in multiple sessions spread over weeks or months. Typically, the mediator will give both parties tasks to prepare, and the mediator will request documentation from both parties so that he or she can prepare as well. If a mediation session does not result in an agreement and a subsequent session has been scheduled, then the parties may each be given suggested “homework” to help ensure that their next session is as productive as possible. However, the entire process is voluntary, and either party can choose to discontinue mediation at any time.
With that said, once parties agree to mediate, it is relatively rare for one party to simply abandon the process. This is especially true in divorces, estate administrative disputes, and other similar types of matters. Instead, it is far more common for both parties to see value in the process, and for both parties to continue to push forward until they are finally able to come to terms.
During mediation, each party should be represented by his or her own attorney. This not only ensures that each party is able to make sound decisions without abandoning his or her legal rights entirely, but it also helps to prevent heated disputes from derailing the session. By relying on independent and unbiased legal advice while also benefiting from the mediator’s neutral insights, disputing parties can feel confident knowing that they are making informed decisions, making progress, and not wasting time bickering over inconsequential matters.
What Happens After Mediation?
If the mediator does not render a decision for the parties, then what happens when mediation is over? The answer to this question depends on whether or not the mediation is successful.
If the mediation is not successful, then the parties’ dispute will continue. If one or both parties decide that continuing to mediate is not worthwhile, then the parties will need to find a resolution through other means. As mediation is a voluntary process that requires both parties’ good-faith participation, it is not necessarily practical to “compel” mediation when one party refuses to engage in the process (although, some commercial contracts contain “mandatory mediation” provisions that require parties to mediate in good faith, and courts can require parties to attempt to mediate in divorces and certain other matters as well).
Finding a resolution through other means could mean proceeding toward trial, or it could mean going to arbitration. In either case, negotiating a mutually-agreeable outcome remains a possibility – although negotiating an agreement shortly after mediation fails is relatively unlikely.
If the mediation is successful, then the parties will enter into a written contract that confirms the terms to which they have agreed. This contract will be legally binding on both parties; and, if either party fails (or refuses) to comply, then the other party can seek to enforce the agreement in court. Once again, however, if both parties have committed to seeing the mediation process through, then the odds are relatively high that they will both uphold the respective ends of their bargain.
Should You Pursue Mediation?
Is mediation right for you? In order to decide, you will need to discuss the circumstances of your dispute with an attorney. If it makes sense to mediate, getting started sooner rather than later could allow you to resolve your dispute more quickly before things become more contentious, and before you incur costs unnecessarily.
Speak with a Trusted Mediation Lawyer at Blado Kiger Bolan, P.S.
At Blado Kiger Bolan, P.S., our attorneys serve as counsel and as mediators for family, real estate, probate, business, and other disputes throughout Washington. If you would like to discuss your dispute with one of our attorneys in confidence, please call us directly or contact us online to arrange an initial consultation.