20 Years of Helping Resolve Tough Disputes
and Finding Practical Solutions to Complex Problems
If you’re like most lawyers, you know what mediation is; you know that it’s an alternate dispute resolution method and that some judges order it in certain cases.
But what do you really know about the mediation process, how it works and whether your client has the obligation to abide by what he or she agrees to in mediation?
If you have questions about mediation that aren’t addressed here, you are always welcome to call our office at 925-407-2080 or contact us online.
Mediation is no substitute for legal advice. In fact, your client relies on you to provide guidance and share knowledge – and that’s irreplaceable.
Mediation is designed to work with what you do as your client’s attorney and to help your client find a real, workable resolution. Because this type of dispute resolution can save your client time and money, it’s usually in your best interest to speak to an experienced mediator who understands the type of dispute your client is facing.
The resolutions you reach during mediation are binding – but only if your client agrees to the terms. At the end of the day, your client will still be able to decide whether he or she is interested in the settlement.
Together, you and your client may decide that litigation is still on the table. While the vast majority of disputes settle in mediation (between 85 and 90 percent of cases settle because of mediation), your client holds the reins. If he or she chooses not to agree to a settlement, nothing that happened during the mediation session is binding.
However, if all of the parties are able to reach an agreement, we will draw up paperwork. Once signed, the agreement is binding.
Typically, mediation lasts less than one day. The complexity of the case and the number of issues that arise will determine how long mediation lasts. It is rare for a case to last more than one day.
Prior to mediation, attorneys for both sides will have a pre-mediation conference with a mediator. This is typically a 10- to 15- minute phone call, during which you may ask questions about the process and raise any concerns you or your client may have.
We will ask you to prepare a 10-page brief that outlines the case and the issues involved. We’ll use it to determine what’s most important to you and your client, and we will be able to focus on the most pressing issues during mediation.
It’s important that you and your client are fully prepared for mediation before you arrive.
When the opposing parties and their attorneys are present, the mediator will give an opening statement. Each party will have time to express their views on the dispute and explained the impact it has had.
It’s important that the opposing parties hear about the dispute from each other. In many cases, the parties have long since stopped talking, and all communication (if there has been any at all) has been through the attorneys. Sometimes this is enough to reopen the lines of communication, which leads to quicker resolution.
Mediation is absolutely confidential. The California Evidence Code is very clear when it says that all communications, negotiations or settlement discussions that take place during mediation are confidential. These things are not admissible, nor are they subject to discovery, in court.
It’s usually best for you and your client to be in the same room as the opposing party and their legal representation. Because communication is essential to a successful mediation, parties are usually able to reach a resolution more quickly when they’re face to face. Nevertheless, in some cases, it is also appropriate to conduct the mediation entirely in separate rooms in a process sometimes colloquially known as shuttle diplomacy.
If you have more questions about mediation that weren’t answered in this mediation FAQ, call us at 925-407-2080. We’ll be happy help.