What is legal mediation and other key questions about alternative dispute resolution?
What is legal mediation?
Mediation is a non-binding process that is designed to resolve disputes outside of court. A mediator is a neutral professional who is trained to work with the parties to facilitate a solution. The process is confidential.
Why mediate instead of litigate?
Mediation gives the parties complete control over the result, rather than turning the dispute over to a judge or a jury to decide. Mediation, especially early mediation, is much cheaper than litigation. Mediations often resolve a dispute in a day or less, while litigation can drag on for years.
In disputes that involve insurance, the person making an insurance claim can get a resolution quickly, and the insurance company can close its file without the legal fees involved in defending a case through trial. In a business dispute, or any area where there is a fracture in an ongoing relationship (franchise agreements, neighbors, landlords and tenants), mediation can repair and ultimately strengthen a strained partnership. That can allow parties to move forward together for their mutual benefit, rather than burning bridges with protracted and expensive litigation.
What you should look for in a mediator?
Anyone can call himself or herself a mediator. You should look for someone with formal training and experience in mediation. It’s a great sign if a mediator has undergone academic training in dispute resolution and is recognized as a mediator by a state bar association. Mediators in civil cases are usually seasoned lawyers with a wide range of experience handling many different kinds of cases. Ideally, a mediator will have experience in the type of case that is involved, but a good mediator is like a diplomat who can help with any conflict.
Retired judges often work as mediators, but may not be the best choice in every case because they are accustomed to acting as decision-makers. Participants will not be satisfied if they feel the decision was taken out of their hands by a mediator who took on the role of judge or jury. Mediation works when the parties decide on the terms of a settlement, without undue pressure from the mediator.
How is it different from arbitration?
Mediation is an informal process where the parties determine the outcome. An arbitration is more formal, usually somewhat like a trial, where one or more arbitrators makes a decision based upon testimony and other evidence that is presented at a hearing in a court-like environment. Arbitration is usually binding, with few appeal rights, and the parties are typically giving up their rights to go to court. It can be an all-or-nothing process.
Arbitration is designed to be considerably less expensive and less formal than a trial in court, but mediation is a much less expensive and quicker process. Arbitration is suited to disputes where the parties actively want someone else to make the decision, or where a dispute by its nature is all-or-nothing – perhaps something like ownership of property, where “splitting the baby” is not possible. Arbitration can also be a good choice if mediation has not been successful. Even where arbitration is mandatory, the parties can agree to mediate the claim before it goes to the ”trial” phase of the arbitration, potentially saving significant time and money.
When is mediation not a good idea?
Mediation is almost always a good idea. But if one party takes the position that “it’s my way or the highway” and refuses to discuss settling a dispute, there’s not much point in a mediation. In some cases, the parties don’t yet have enough information to understand the strengths and weaknesses of their own positions, so it can be worth waiting a while longer for the discovery process to proceed (depositions, etc.) before attempting a mediation. The key is not waiting too late to mediate – if you wait until just before your trial date, you’ve spent a lot of time and money that could have been saved with an earlier mediation.
Is a legal mediation binding?
The legal mediation process is non-binding because no one can force a party to agree to a settlement – the decision to settle or not is always in the participants’ hands. Of course, if the parties reach a settlement at mediation, that settlement agreement is binding and enforceable like any contract.
How long does mediation take?
Most mediations are scheduled for a day, or a half-day, depending on the complexity and value of the case and the parties’ preferences. Some cases settle very quickly at mediation, when the parties aren’t as far apart as they’d assumed. More typically, the process takes several hours or a full day. A good mediator won’t give up at the end of the day even if the case hasn’t settled. Many cases settle within a few days after the mediation with the continued help of the mediator, who is trained not to give up. An extra day or two can give the parties time to consider their positions and the offers they’ve received, and to think of new solutions that become apparent through the mediation process.
What are the average settlement offers during mediation?
There are as many different kinds of settlement offers as there are people. Knowing that the average American man is about 5’9” tall does not tell you anything about Shaquille O’Neill. In a mediation, one party may start by asking for too much, much more than they realistically think they can get. The other party may respond by offering a very small amount that they know would never be accepted. That kind of posturing isn’t usually helpful, but it can be a part of the process. Over the course of the mediation, the parties move closer together until they reach an agreement, run out of time, or quit. There’s a much better chance of settling a case at mediation when the parties start with more realistic initial offers – that builds trust and avoids “insulting” the other party. But even where the opening offers are unrealistic or insulting, trust the process and remember that it’s the offer at the end of the mediation that matters.
What is the role of a legal mediator?
The mediator’s role is to find creative ways to bring the parties together. The mediator does not favor one side over the other and does not decide any issues in the case, but guides the content and tone of the conversation in a way that’s constructive. The process allows parties to vent to the mediator without inflaming the opposing party. A good mediator, like a marriage counselor, will translate a party’s frustration in a way that the other party can understand the position without feeling personally attacked or insulted. The goal is to find a solution that both parties can accept, even if no one gets everything they wanted.
Who pays for legal mediation?
As with all things mediation, it’s usually decided by the participants! Ideally, they agree to a cost split in advance of mediation. Customarily, if there’s a settlement, the party that is paying the settlement will pay for the cost of the mediation, but that’s always subject to negotiation. In a court-ordered mediation, fee splits are often set by the court’s order, but the parties are free to alter the split by agreement.
What type of legal mediation does Scandurro & Layrisson provide?
Dewey Scandurro is available to mediate all types of civil disputes, but he has particular experience with insurance claims, personal injury, product liability lawsuits, admiralty and maritime law, medical malpractice, and business disputes. Dewey is one of only 12 New Orleans lawyers on the official Civil Mediator Registry of the Louisiana State Bar Association. He was formally trained as a mediator at the Straus Institute for Dispute Resolution at Pepperdine Caruso Law School, which has the top-ranked dispute resolution program in the country, and he is pursuing an academic certificate in dispute resolution there. Contact us if you’d like to discuss whether legal mediation is an option for your case or situation.