Mediation is a dispute resolution process in which a neutral third party, called a mediator, helps people or organizations discuss a legal dispute and work toward an agreement, using diplomacy and discussion. Unlike a judge, the mediator does NOT decide who wins. The parties jointly decide whether or not to settle and what terms to agree on. Mediation can happen before a case is filed (called pre-suit mediation) or after suit is filed but before trial.
What Is Civil Mediation?
Civil mediation describes the types of cases that are being mediated. Mediation in civil cases can be used to resolve disputes involving personal injury, contracts, property, employment, business matters, and other civil claims. Civil mediation could also include disputed matters in probate court. It may take place voluntarily or as part of a court process, depending on the case and jurisdiction. The purpose of mediation is to give the plaintiff and defendant an opportunity to communicate, evaluate their positions, and consider settlement opportunities before litigation starts or continues.
Family law mediation involves matters surrounding divorce, dissolution, child support, visitation, and other disputes within and about families. Family law mediation uses the same process but covers different factual and legal issues.
How Does the Civil Mediation Process Work?
The process can vary, but a typical mediation may include these steps:
Preparing for Mediation
The parties and their attorneys meet before the mediation conference to review the facts, claims, evidence, and key documents. They should also identify their goals, objectives, and settlement concerns.
Opening the Mediation
The mediator begins the conference with personal introductions and by explaining the process and ground rules. Each side might give an opening statement explaining its viewpoint and the issues it wants to resolve.
Discussing the Dispute
The mediator helps the parties communicate about the dispute. Discussions may take place together or through separate private sessions, called caucuses. In a caucus, the parties and their attorneys may talk freely with the mediator and discuss matters they don’t want the other side to hear. The mediator does not transfer information from one caucus to the other unless authorised.
Negotiating a Settlement
The parties consider possible solutions and may exchange settlement proposals back and forth. The mediator can help clarify points of agreement and disagreement and identify areas of possible compromise. The mediator might ask questions to learn more about the parties’ concerns and might make suggestions. A mediator does not and cannot require anyone to settle their case.
Reaching an Agreement
If mutually acceptable terms are reached, they can be documented in a settlement agreement. It is a good practice to put the settlement terms in writing and have the document signed by all parties at the end of the conference to avoid later confusion. Attorneys should review the language before it is finalized.
What Does a Civil Mediator Do?
A civil mediator acts as a neutral third party and diplomat. The mediator does not act as a judge, juror, or advocate for either side. The mediator helps the parties communicate, identify disputed issues, consider options, and work toward a voluntary resolution. The ideal goal is a win-win agreement where both sides are better off than they were before and in a better position than going to a contested trial.
Who Takes Part in Civil Mediation?
Participants may include the plaintiff, defendant, attorneys, insurance representatives, business representatives, and the mediator. Parties representing insurance companies and other corporations need authority to discuss and finalize settlement terms.
This article provides general information about business dispute mediation and is not legal advice. Anyone considering mediating a dispute should consult with an attorney.