Mediation in civil litigation is designed to solve problems and assist the parties in reaching a resolution of their legal dispute. Mediation is often invoked to resolve the parties’ disputes outside of traditional court processes. Unlike litigation, where abundant statute and case law provide process structure and guidance, mediations, often characterizes as a pause on the acrimonious practice normalized in litigation, are largely left up to the participants.[1] There are several advantages to engaging in mediation.
Mediation’s advantages include but are not limited to the following goals:
- Time and cost savings;
- Litigation can be time consuming. Some proceedings take over five (5) years to resolve. Additionally, litigation is expensive, with attorneys sometimes obtaining six figure attorney fee awards. With these risks in mind, mediation can provide a timelier resolution.
- Confidentiality and privacy;
- The trial court is a public institution with its activity and filings mostly open to the general public. In the event one or more of the parties wish to keep details regarding their proceeding private mediation becomes an attractive option. The deliberations at mediation and outcomes are or may be made private and confidential.
- Self-Determination;
- When parties to a lawsuit participate in an adjudicative procedure such as a civil trial, arbitration, or administrative hearing, a third party – a judge or arbitrator – makes the decision for them. The parties are bound to the ruling. Mediation offers an alternative: self-determination. In mediation, this concept means the parties themselves — not the mediator and certainly not a judge — decide whether and how to resolve their dispute.
- Authorizing and acknowledging feelings and emotions;
- Sometimes, an expression and understanding of a party’s emotional needs may be required to reach settlement. Mediation is designed to value the expression, understanding, and emotional release of all participants.
- Less emotional toil;
- As mediation truncates litigation, it goes without saying that it reduces the emotional toil litigants face when engaging in protracted and taxing litigation.
- Opportunity for preserving relationships;
- Where parties to a litigation wish to preserve their relationship, mediation is a viable alternative. Court judgements and jury verdicts tend to leave a sour taste in the one or both sides mouth that have the almost inevitable effect of causing relationships to fray beyond repair.
- Potential for creative solutions;
- Through mediation, the potential for imaginative and creative solutions is much greater. The parties are able to construct solutions more suitable for them. They are not governed by restrictive adherence to the law. To this end, many mediators encourage parties, “to think outside the box,” and to brainstorm potential options to reach a creative resolution.
- Process flexibility and informality;
- Mediation is inherently flexible and informal. This structure can lead to direct communications with the mediator. In more formal litigation, parties may be intimidated and hesitate to talk freely.
- Avoidance of legal precedent;
- Where one or both parties are afraid of setting precedent, mediation may be appropriate.
- Reduces court congestion; and,
- California courts are known for being notoriously backlogged. Mediation is an avenue for parties to avoid the backlog and the interminable wait plaintiffs experience during the glacial march towards trial. Further, should the case settle at mediation, the parties contribute to the reduction of trial court congestion.
- Mediator may become an ongoing resource.
- In the event the case does not settle but appears that it is nearing settlement, the mediator may become an ongoing resource that can be used intermittently as the parties continue their endeavors to reach settlement. In our view, a good mediator will provide their contact information and continue reasonable dialogue in hopes of settling the case shortly after a mediation session concludes where it appears likely that the parties are nearing final resolution.
Conversely, at trial the parties have one goal and one goal only: winning by any lawful means necessary & at any cost (both emotional and financial).
It is important to note that private ADR, and private mediation, are largely recognized as separate from the Court. If you litigate your case you will most likely, but not always, mediate with a private mediator who is affiliated with a private mediation company who has no formal or business relationship with the trial court handling your case. Many individuals work as mediators on a full-time basis. Therefore, mediation is widely viewed as its own independent profession, and not part of or corollary to the practice of law or the court system. That is to say, when you mediate privately, you enter another world distinct from the trial court and your legal case.
[1] To accomplish the objective of a mediated resolution, counsel may need to temporarily set aside the limited role of advocate in favor of a more holistic approach that encompasses the client’s underlying needs as well as their rights and remedies.