Mediation is a form of alternative dispute resolution (ADR). Mediation is, essentially, a negotiation facilitated by a trained neutral third party. A mediator works on behalf of both disputing parties in assisting a mutual compromise by 1) pointing out strengths and weaknesses of each side’s position; 2) keeping communication open and civil; 3) interpreting and conveying concerns; 4) offering input as to potential solutions; and 5) assisting in drafting a final settlement. Unlike arbitration (a trial-like form of ADR), the mediator is not a decision maker and will not make any findings or declare a “winner.”
As many a mediator will tell you, mediation is really the only time the parties will have control over the outcome of their dispute. If you go to trial, you “roll the dice” as to the trier of fact’s (be it judge or jury) findings. Know, however, that you will not leave mediation with a settlement that gives you everything you want. The goal is compromise—known alternatively as mutual disappointment. As such, mediating parties need to go into a mediation with a “business mind” mentality. This is not a place to stand on principles; this is a place to weigh (financial!) pros and cons and buy peace of mind.
So, if you are not ready to be a pragmatist, then mediation is not for you. If you must be an ideologue, then mediation is not for you. If you are not prepared to pay a little more to the other side than you are comfortable with, then mediation is not for you. If you are not prepared to accept a little less than you believe you are entitled, then mediation is not for you. If you are not ready to revel in your “disappointed serenity” at the end of the day, then mediation is not for you.
If you are prepared to buy your peace, there are a few things you should know. First, mediation is not cheap, but it is certainly leagues cheaper than litigation. Mediators can charge anywhere from $300 to $1,500 per hour for their time and there are typically administrative costs (e.g., scheduling/booking) on top of the mediator’s fees. Many times, parties agree to split these costs. Next, mediation proceedings are confidential. This means that if your mediation session(s) do not get anywhere and you cannot reach settlement, the discussions, documents, settlement offers, etc. cannot be used in any subsequent proceedings (depositions, trial, etc.). Confidentiality also extends to the mediator, who cannot be called as a witness to testify as to the mediation session(s) and/or his or her opinion(s) thereto.
We here at Freedman and Fazio, APC believe mediation can be a very useful tool. We are well versed in the mediation process and are here to guide you. Contact us online or call 805-409-9056 to learn more.