Mediation is a great way to solve traditional legal disputes and can be a much cheaper, quicker and more pleasant process than litigation. Not too many people are very familiar with mediation, however, and most people have questions about whether the process is right for them. Here are some of the most common mediation questions and their answers.
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Can my case be mediated?

Typically, only civil cases can be mediated. The general exception is that certain nonviolent criminal matters, such as harassment, often allow mediation. Typical civil cases that are mediated include business disputes, landlord-tenant disputes, small claims disputes, divorces, child custody disputes and contract disputes.
One of the primary reasons to choose mediation over typical litigation is if you are concerned about maintaining an important relationship with the person on the other side. Mediation is more cooperative and collaborative, so it is a good choice for disputes that involve business partners, co-parents, or next door neighbors.

Are there cases where I shouldn't consider mediation?

Even if your case can be mediated, you should always question whether it is the best option given your goals and situation. Some typical reasons to not mediate might include:

• You strongly feel that the other party should have to admit or be found guilty. Mediation will typically not involve any sort of admission of guilt; instead, it is structured more like a compromise.
• You want to send a "message" or establish a legal precedent. Results from mediation are not binding on other parties, so even if you mediate a successful result from a large company, it will have no bearing on future cases against that company.
• You believe a jury would be extremely sympathetic and award you a big verdict. Mediation is a compromise, and as such it tends to exclude extremely large settlements that juries can sometimes award.

Do I need a lawyer for mediation?

Mediation does not require a lawyer; in fact part of the advantage of mediation is the lack of a lawyer and the corresponding legal fees. However, you may want to hire a lawyer as a consultant to offer advice during the mediation which is substantially cheaper than hiring a lawyer to litigate your case. Also, a lawyer should generally be consulted to discuss the consequences of the mediation and any settlement.

How long does mediation typically take?

Statistically, most mediation cases only last a day or two. This is partly because mediation is less cumbersome than litigation, but also because people typically take smaller disputes to mediation and save really large complex claims for litigation. Larger business and divorce/custody mediation may last significantly longer - weeks even - but this is still much quicker than traditional litigation.

What does the mediation process typically look like?

While there is no formal mediation process, typically mediation will follow these steps:

• The mediator will introduce him or herself and make some opening comments about the rules and goals of mediation.
• Each side is given the opportunity to describe the dispute as he or she sees it without interruption from the other side.
• Depending on the mediator and the parties, the mediator may then start a mutual discussion with both of the parties present or may engage each party privately, going back and forth, working out each issue.
• After discussing the issues with the parties, a mediator will typically bring both parties together to jointly negotiate a solution.
• If the negotiation is successful, then the mediator will put down the agreement in writing, advise them to consult a lawyer, and ask them to sign pending their lawyer's agreement.
• If the negotiation was not successful, the mediator will typically summarize the issues the parties did agree on, and advise them of their rights going forward.

Is mediation fair?

Mediation should result in a fair compromise, because both sides are more able to freely discuss potential problems (mediation does not result in a public record unlike court cases) and neither side is bound unless he or she explicitly agrees to the proposed settlement. This means neither party is bound by the decisions of a judge or jury, and only agrees to what he or she considers fair.

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• Get legal help you can afford. Our dedicated paralegals & experienced mediators offer budget-friendly solutions for everyday legal needs. Contact us today! 818-945-9333 or 951-440-5645

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CIVIL MEDIATION--WHAT HAPPENS AFTER THE MEDIATION?

Reaching a settlement in mediation in a civil case often evokes the same feelings as mediation in other situations.  You may feel relieved that the pressure is over or excited that you have found a way to move forward in your life without the stress over litigation.  You may feel regretful that you didn’t get as much as you were hoping for.  You may be wondering “ What if….?”
 
What happens next?  This post focuses civil cases.  In the United States, the process we use in a legal case depends on the type of case: civil or criminal. A civil case involves a conflict with another person or a company.  In a criminal case, the litigation concerns a wrongdoing that violates a criminal law of the state.
There is a wide range of civil cases.  Civil cases can involve litigation between two companies about a contract, employment discrimination, consumer law violations, accidents or personal injury cases or any number of other disputes about the rights and duties between two parties.  We can look at mediation in a personal injury matter as an example as to the process of mediation in a civil case. 
Mediation is often the best way to resolve a civil conflict.  If selected early, mediation saves time and money for both parties in legal expenses.  Our office encourages clients to participate in mediation at the earliest possible date, often BEFORE filing suit, to be sure to gain the most benefit possible from early resolution.  In many states, mediation is required in all civil cases before a trial is scheduled.  Regardless of when the mediation occurs, what happens next?

If you don’t reach an agreement:  If you don’t reach an agreement during the first mediation session, don’t give up!  About 98% of all civil cases settle before trial so it is likely that your case won’t go to trial.  Sometimes, the process opens up communication and it becomes more likely to settle quickly and fairly following the mediation.  In other situations,  a further mediation session is helpful.  If your mediation fails to initially resolve your case, the case will continue through the process, but your attorney should continue to address the potential for resolution or settlement.

If you do reach an agreement:
      
Concerns.  Both during and after mediation, you may have concerns about the process and the outcome. Check with your lawyer or your mediator before you sign the agreement and be sure that all of your concerns are addressed.  Once you sign, this most likely will be the only chance you have to settle your case!
       
Fees.  There will be fees associated with the mediation.  Normally, the parties split the fees equally in civil mediation.  Sometimes the parties agree that one party or the other will pay the mediation fees.  In some cases, the courts pay mediation fees.  
        
Release.  When you reach an agreement in mediation, the mediator usually writes the agreement up and the parties and their attorneys will sign it.  This agreement is often private and in civil cases may not be sent to the judge.
      
Check.  The settlement check is sometimes sent to your lawyer along with the release or is sometimes sent once the lawyers return the release to the insurance company.  Once the check arrives, it probably will be issued to both the parties and the lawyers.   The lawyer deposits the endorsed check in a special trust account until the check clears the bank and the settlement proceeds can be paid to you, your creditors and any lien holders.  Statutes and regulations limit time limits for most of these steps.
     
Disbursement.  Once the check clears, the lawyer should work with you to verify your medical bills and determine any liens that might be placed on your settlement check.  For example, if your health insurance, "med pay"  or Medicare paid bills related to the accident, there might be a lien or “subrogation interest” on your settlement.  Your attorney will verify that, along with attorney’s fees and costs before the payment is issued to you.
         
Your check.  Once your attorney determines the payments from the settlement,  you will meet with the attorney and pick up your check.  You should receive copies of any checks issued to pay your bills, liens and subrogation interests.
       
Report.  The mediator will send a report to the judge notifying the judge that the parties appeared for mediation and participated in good faith.  In many civil cases, the specific agreement is not sent to the judge.  Even when you don’t reach an agreement, the mediator sends this report to the judge.
        
​Dismissal.  If the mediation resulted in a settlement or agreement, once the releases are signed and the payment is made, the lawyers will send a dismissal order to the judge who signs the order.  At that point, the legal case is resolved and in most civil cases the parties will not need to return to court.

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Why mediation? Because it works in reaching a settlement, and works well. Mediation allows litigants to decide the outcome of their own cases without the risk of a jury or having your case or verdict overturned by a judge.

Mediation has been highly successful at resolving many lawsuits as a form of alternative dispute resolution, especially in personal injury cases such as business torts, automobile accidents, falls, and injuries caused by defective products. Oftentimes mediation is the first opportunity where the parties can meaningfully sit down and discuss the merits of case in an attempt to reach a settlement through negotiation. *While mediation is often productive, mediation can fail if the parties are not properly prepared of what to expect.*  If you are attending a mediation as a plaintiff (the injured party) in a personal injury lawsuit, here are 5 things to expect:

1. Expect to hear statements from the opposing party that you disagree with. At the beginning of most mediations, the parties and their lawyers will gather in conference room together for opening statements. You and your attorney will be on one side of the table. The defendant, the defendant’s attorney, and usually a representative from the defendant’s insurance company will sit on the other side. The mediator, who is neutral, will sit at the head of the table. Your attorney will present your side of the case. The defense attorney will then make statements that will challenge your view of the facts and the value of your case. This is his or her job. Do not be offended.
2. Expect the parties to be far apart at the beginning. At the early stages of the negotiations, you can expect the parties to be far apart. You can count on “low ball” offers from the defense, or offers that too low to consider. The defense can expect your starting point to be too high, as well. Remember to be patient. As with any negotiations, it’s not where you start, it’s where you end!
3. Expect the process to be lengthy. A successful mediation can take anywhere from a few hours or a full day. In our experience, the average mediation time is between 4-6 hours. The process takes time because the mediator will be meeting privately with the parties in separate rooms in order to gather information about the case. The mediator will deliver offers and demands back and forth between all interested parties.
4. Expect the mediator not to pick a side. The mediator is not your attorney or your advocate. The mediator’s only “client” is the “settlement.” In order for a mediator to facilitate a settlement, he must be neutral and fair to all parties. The mediator cannot “pick” one side over the other.
5. Expect to compromise.  Mediation cannot work without compromise. If you want to reach a settlement, then you must be willing to make concessions that are reasonable and fair. Mediation is a “give and take” process that allows you to maximize your rewards and minimize your risks through a negotiated settlement. Without compromise, you can expect your case to end in court.

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