When a person decides to pursue legal action to resolve a dispute, they often envision having their day in court in front of a judge and jury. However, the vast majority of cases never get that far. Most cases settle before trial, and many will settle without the parties ever seeing the inside of a courtroom.
Attorneys and courts have increasingly turned to alternative dispute resolution (also known as ADR) to help people resolve their legal disputes. ADR can include mediation, arbitration, and judicial settlement conferences. These processes allow the parties to a dispute to come together to negotiate a compromise in a confidential meeting.
Here are five of the top frequently asked questions about mediation.
You should at least try. Mediation will save time and money, and might be able to get you the type of relief a court cannot award. At minimum, it provides valuable insights into the other side's position which can help you later on if the case goes to trial.
When a couple is going through a divorce, courts often require them to attempt to resolve their case via mediation before going through a court trial. During the mediation, each side can have their own attorney, and a mediator will facilitate the negotiation of the division of property, alimony, child support, and child (or pet) custody. Generally, each side is required to prepare a statement and provide the necessary information requested by the mediator, or required by the court.
Similarly to divorce mediation, in a car accident case, a judge may order the parties to mediation. The parties will present their cases to a mediator who will facilitate settlement negotiations. In these types of cases, frequently the dispute is only about how much a plaintiff should receive in damages, although sometimes fault and/or causation of the injuries may also be an issue.
Mediation often fails. However, cases frequently settle after failed mediations due to the discussions or offers that were made during mediation. After a mediation fails, settlement talks can continue between the parties. However, if the mediation failed because settlement is not possible, at that point, the parties must start preparing the case for trial, or another attempt at mediation or settlement.
Most, if not all, courts require that mediation sessions be held confidentially. This means that things that get said during mediation, or settlement offers that get made, cannot be used against the parties making the statements or offers. Confidentiality is one of the aspects that makes mediation so effective. Parties can offer to compromise without fear of it coming back to haunt them, though there are exceptions to the extent of the confidentiality.
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- Divorce: Is Mediation Right for You? (FindLaw's Law and Daily Life)