What is Mediation?
Mediation is a form of “Alternative Dispute Resolution.” It is one way in which disputing parties can work to resolve their disputes without going to court. It is an alternative to court. It can also be one way of resolving disputes during pending court litigation. Other forms of ADR include Arbitration and Early Settlement Evaluation through the courts.
Mediation has become more popular and widespread because of the benefits to the courts and to parties in having disputes resolved using far less time and money and without overburdening court resources. However, time and cost-savings are only part of the benefits of mediation.
Clients who are unfamiliar with the mediation process often have many questions about the process, the role of the mediator and what they can expect. In addition to this web site, I also publish a web log (a “blog”) which I update at least weekly to include answers to the questions I receive and to provide examples of cases in which I have served as a mediator. Please visit: www.sfmediation.com.
Parties as Decision Makers and Winners
A key benefit of mediation is that the parties are their own decision makers. There is no judge or arbitrator to impose an undesirable settlement or award on any party. Instead, in mediation, an independent third party, the “mediator,” is trained to facilitate communication between disputing parties, to skillfully guide the parties toward resolution of disputes in a manner which is mutually beneficial to all parties and to find solutions which satisfy everyone and do not result in one party “losing” to the other party. The mediator’s job is to work with the parties to allow communication between the parties in a productive and cooperative environment where the parties’ goals are the same: to find a resolution to the dispute that works for the particular parties in the dispute and which saves everyone time, money and further litigation.
Confidentiality & Privacy
Another key benefit of mediation is that it is a confidential and private process. All parties are required to sign a confidentiality agreement prior to beginning the mediation. This means that nothing that is said, done or prepared for the purpose of mediation can ever be used against any party in court or anywhere else. At no time can the mediator be asked to appear in court on any party’s behalf. The exception to this confidentiality rule is that any Settlement Agreement which is prepared as a result of the mediation is generally not confidential in part because it may need to be filed to be enforced.
Unbiased & Neutral Mediator
It is important to recognize that the mediator is hired by all of the parties to the dispute and therefore does not represent any individual party. Although Ms. Lawhon is an experienced attorney, when she is hired by disputants as a mediator, she does not act in her capacity as an attorney. In other words, she cannot give legal advice to the mediating parties, recommend a certain course of action or advocate on behalf of any one of the parties. However, she does explain and discuss legal concepts and statutory or case law with parties where appropriate to enable the parties to make informed choices.
Attorneys in Mediation
Depending on the type of case, attorneys may or may not be present in the mediation. There is no requirement that attorneys be present at mediation, regardless of whether attorneys have been retained or not. Attorneys may be present, may be available by telephone or may be available for later consultation with individual clients, if desired.
A Good Solution
Most disputes are emotionally draining in addition to being a drain on time and finances. A mediated dispute puts the clients in control of their own solutions and provides significant time and financial savings so that the parties can start to put the dispute behind them and move forward with their lives. See my mediation blog for more information:www.sfmediation.com