Litigation is expensive, time-consuming, and fraught with risk. In most cases, both sides can greatly benefit from mediation. Mediation allows each party to process all of the feelings and test the strength and weakness of their case in a controlled setting. Unlike arbitration or trial, mediation does not end in a binding the decision for the parties. As such, it is a facilitative process intended to lead to a positive outcome for all. The goal of every mediation is to come to an agreement to avoid further litigation, expenses, and empower each party to decide the outcome of their case.
Mediation as Alternative Dispute Resolution (ADR) in California
Mediation is a form of ADR where a neutral third party assists the parties to reach a mutually agreeable resolution. The role of the mediator is to understand each case and aid discussions between the parties to bridge the gap on every issue and fact, as much as possible. A mediator does not ultimately decide the outcome of your case. Rather, the mediator guides each side to come to a prospective resolution within an acceptable range of possibilities.
Mediation is ideal for cases where the parties are prepared to enter into negotiations, in good faith, with a substantive understanding of the law and facts governing their case. It can aid to maintain a positive relationship between the parties, particularly where negotiations have become overly emotional, strained, or stalled. A mediator can impartially assist the parties toward productive discussions without forcing a side to a compromise that they are unwilling to make.
On the other hand, mediation may not be suitable where a party refuses to compromise, attends the mediation pro forma, or is reluctant to release information to the other side that may be helpful in the evaluation of their case. Given the informal nature of mediation, it may also not be appropriate where there is a power imbalance between the parties, and the one with more bargaining power seeks to take advantage of the other. The best time of negotiation is the kind where creative compromises can be made so that both sides leave with a good outcome.
Mediation Styles in California
There are different types and styles of mediation available, depending on the state, the case, and the parties' preferences.
In facilitative mediation, the mediator guides a discussion between the parties to help them understand each other's position and interests. The mediator doesn't express their views but instead encourages the parties to find a resolution. A legal analysis of the case is usually secondary to the interests and wants of the parties.
In contrast, the mediator in evaluative mediation highlights the strengths and weaknesses of the parties' cases and may offer an opinion on the outcome of the matter at trial. For this reason, the mediator is usually a legal expert on the issue at the heart of the dispute who can give a legal analysis of the case.
While facilitative and evaluative mediation focus on resolution, transformative mediation aims to repair and rebuild the relationship between the parties so they can find an agreed resolution. The mediator does this by helping the parties recognize and understand each others' interests and needs.
Common Areas of Law Using Mediation
Mediation is used in all areas of law, but it is most common in the following areas.
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Family Formation Law - Adoption/Surrogacy
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Business
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Civil
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Commercial
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Divorce
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Employment
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Intellectual property
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Personal injury
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Real estate
Advantages of Mediation in California
Mediation is used because it offers a number of benefits and advantages for both parties.
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More cost-effective. Mediation is a much more affordable option, compared to litigation. The proceedings are informal and often less complex. While there is a mediator fee, the parties typically share this cost unless agreed-to otherwise.
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Less time-consuming. Mediation may also lead to a faster outcome than a trial. There are generally many skilled mediators available to hear a matter, and mediation can be set up at the parties' convenience, rather than relying on a busy court schedule.
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Flexible outcomes. There is a range of potential outcomes available to parties in mediation. The court often has limited options, whereas mediation allows the parties to come up with more creative solutions.
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Preservation of the relationship between the parties. Successful, voluntary mediation can allow the parties to move forward with their relationship intact. Since the outcome is mutually agreed upon, the parties are more likely to follow it than a court-ordered version.
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Confidentiality. What happens in mediation stays in mediation. Mediation proceedings and outcomes are confidential.
Disadvantages of Mediation in California
Mediation has its downsides, too, depending on how it's perceived.
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No guarantees. If the parties cannot reach an agreement, they must still go to court despite investing time and money in the mediation process.
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No legal precedent. This means the outcome cannot be used to guide similar cases in the future. There is no binding decision.
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Limited legal protections. If there is a power imbalance between the parties, the stronger party could use mediation to their advantage. Unlike a trial, there are limited procedural protections for the weaker party.
Contact Lily Solmer for Mediation in Orange and Los Angeles County Today
Mediation is a great way to avoid litigation and resolve legal issues. With the guidance and advocacy of an attorney, it can be effective. Contact Solmer Law Corporation today either by using our online form or calling us at (818) 928-5529, ext. 2 to schedule a Consultation. Our ADR lawyers will review your case and confirm whether mediation might be a suitable starting point.
