05 Feb Using Mediation to Take Control of and Resolve a Lawsuit
Litigation is an incredibly powerful dispute resolution tool. A lawsuit can serve as a vehicle to enforce rights in the face of wrongdoing or when dealing with a difficult party. However, lawsuits can also be incredibly unpredictable. When the resolution to your dispute lies in the hands of a judge or jury, you can never really be sure of what they will decide. Any opportunity to increase control over the process is always a good thing—mediation is one way to take control of the outcome of a dispute.
Mediation is a meeting between two parties to a dispute with a neutral person (the mediator) guiding the discussion. The goal of mediation is to come to a solution that makes sense for both sides. Mediators are usually experienced lawyers or former or current judges who are skilled at resolving problems in ways that work for both sides. However, unlike a judge or a jury, a mediator does not have authority to make anyone do anything. A mediator simply facilitates the discussion between the parties.
Unlike a dispute in court, the parties are the ones who decide how to compromise rather than having a judge or jury make a decision for them. This is an incredibly useful tool that often leads to favorable, and predictable, outcomes for all parties involved. In fact, mediation has proved so useful that North Carolina requires mediation prior to trial for all parties who bring suit in Superior Court, and many federal judges will order mediation as well.
Generally, the parties pay the mediator for his/her time and split the cost evenly. Because the parties pay, they also have the ability to choose the mediator. This allows the parties to control the process even more, since they can choose a mediator who has experience in the type of conflict they are involved in.
One of the beauties of mediation is that, like Vegas, what happens there stays there. The mediator is sworn to confidentiality. Similarly, the discussions between the two parties cannot come into the lawsuit to be used against either party in court. If the lawsuit continues, the judge or jury will not know what you discussed during the mediation.
So how exactly does mediation work? It starts with a “general session.” In the general session, all parties and the mediator gather in one room and each party has the opportunity to present its position to the mediator and the other party. The mediator will then explain how he/she plans to conduct the rest of the mediation so the parties know exactly how the rest of the mediation will go.
After the general session, the mediator will then conduct “breakout sessions.” In a breakout session, each party goes to its own private room to meet with the mediator and discuss settlement proposals. The mediator will go back and forth between the two parties to communicate the settlement proposals offered by the opposing party. The mediation can be as short as a few hours or as long as a full day. It all depends on the parties and how willing each one is to come to a compromise.
Once the parties reach an agreement, all parties and their attorneys generally sign a written document setting out the terms of the agreement. The agreement is a binding contract, and both parties are subject to legal consequences if they break the agreement.
What we do in mediation
As attorneys, our role in mediation is multifaceted. First, we strongly advocate our client’s position so that the opposing party understands what lies ahead if no settlement is reached. But we also provide perspective to our own client on the realities of continuing with litigation, which include time investment, costs, stress, and uncertainty. Lastly, we advise our client to make sure a proposed settlement is in his or her best interests. It is very important to us that our client receives a fair resolution and is satisfied with the outcome.
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