This page has articles on the basics of mediation. It starts with explaining the civil litigation system, and then explains how mediation works. There is also an article that explains how mediation is different than arbitration. Finally, there is an article on why mediation has become so popular.
The Litigation System
Mediation is an alternative to the civil litigation system, or resolving claims and disputes through lawsuits. In order to understand why mediation is popular, it helps to have a basic understanding about how the litigation system works.
After one party files a lawsuit, the other party then files a written answer and perhaps a counterclaim (or counter lawsuit). The parties then engage in a lengthy "discovery" process, in which they exchange detailed information. Often, the information exchange goes far beyond the matter at hand. In business cases, it is commonplace to produce thousands of pages of documents, and in some cases the production may exceed a million pages.
Persons with knowledge potentially relevant to the lawsuit are required to give depositions, a process whereby they are put under oath and required to answer detailed questions by the opposing party's counsel. Depositions are recorded by a stenographer and sometimes videotaped. Witnesses may spend many hours, if not days, preparing for and giving depositions.
After the discovery process, the defendant (the party being sued) will typically file a motion (called a motion for summary judgment) asking that the case be thrown out of Court. Assuming the motion for summary judgment is denied (and they often are), the parties are then put in line for trial.
In most jurisdictions, the trial will not happen quickly, because the courts are backlogged with criminal cases (which take priority) and other civil cases. Even if a case is vigorously pushed, it often takes two or three years, or even longer, to go to trial.
If a case reaches trial, most cases are tried to juries, who are ordinary citizens summoned to serve. Jurors often have no experience in a particular subject matter (sometimes lawyers will try to eliminate anyone who might actually know something about the subject matter as a potential juror). After a trial, the case may be taken through a lengthy appeals process.
Litigation is very expensive. First, there are legal fees. Other costs can also be substantial, including expert witness fees, court reporter and videographer costs. In large cases, even copying costs can be substantial. A new layer of cost has been added through the new Federal e-discovery rules.
Despite periodic efforts to reform or streamline the system, there seems to have been very little progress. I began practicing law in 1982, and this description of the "system" would have applied then just as it does today.
After one party files a lawsuit, the other party then files a written answer and perhaps a counterclaim (or counter lawsuit). The parties then engage in a lengthy "discovery" process, in which they exchange detailed information. Often, the information exchange goes far beyond the matter at hand. In business cases, it is commonplace to produce thousands of pages of documents, and in some cases the production may exceed a million pages.
Persons with knowledge potentially relevant to the lawsuit are required to give depositions, a process whereby they are put under oath and required to answer detailed questions by the opposing party's counsel. Depositions are recorded by a stenographer and sometimes videotaped. Witnesses may spend many hours, if not days, preparing for and giving depositions.
After the discovery process, the defendant (the party being sued) will typically file a motion (called a motion for summary judgment) asking that the case be thrown out of Court. Assuming the motion for summary judgment is denied (and they often are), the parties are then put in line for trial.
In most jurisdictions, the trial will not happen quickly, because the courts are backlogged with criminal cases (which take priority) and other civil cases. Even if a case is vigorously pushed, it often takes two or three years, or even longer, to go to trial.
If a case reaches trial, most cases are tried to juries, who are ordinary citizens summoned to serve. Jurors often have no experience in a particular subject matter (sometimes lawyers will try to eliminate anyone who might actually know something about the subject matter as a potential juror). After a trial, the case may be taken through a lengthy appeals process.
Litigation is very expensive. First, there are legal fees. Other costs can also be substantial, including expert witness fees, court reporter and videographer costs. In large cases, even copying costs can be substantial. A new layer of cost has been added through the new Federal e-discovery rules.
Despite periodic efforts to reform or streamline the system, there seems to have been very little progress. I began practicing law in 1982, and this description of the "system" would have applied then just as it does today.
How Mediation Works
Mediation is a process that parties with a dispute can engage in before a lawsuit is filed or after a lawsuit is filed. The parties often voluntarily agree to mediate. If a lawsuit has been filed, courts will sometimes require the parties to mediate.
What is mediation? In essence, mediation is a structured and confidential settlement negotiation where the parties and their counsel meet with a trained neutral called a mediator. Typically, a mediation session goes something like this: The parties will first meet with the mediator in what is called a joint session. Each side will make a presentation regarding their view of the claim or dispute.
Following the joint session, the mediator will often meet with the parties separately. These meetings are called "caucuses." During the caucus, the mediator will attempt to explore in greater detail the needs and interests of each party. At some point, one of the parties will make a settlement offer. Once a settlement offer is made, the mediator will present it to the other side.
Few cases settle upon the making of the first offer, but the mediator will try to keep the discussions going. The mediator will try to make sure that both parties have fully evaluated the strengths and weaknesses of their respective positions, and that they understand the other party's positions. The mediator may determine that a further joint session is necessary and bring the parties back together for further joint discussions.
Mediation is a very flexible process. That said, mediation has a number of fundamental characteristics:
What is mediation? In essence, mediation is a structured and confidential settlement negotiation where the parties and their counsel meet with a trained neutral called a mediator. Typically, a mediation session goes something like this: The parties will first meet with the mediator in what is called a joint session. Each side will make a presentation regarding their view of the claim or dispute.
Following the joint session, the mediator will often meet with the parties separately. These meetings are called "caucuses." During the caucus, the mediator will attempt to explore in greater detail the needs and interests of each party. At some point, one of the parties will make a settlement offer. Once a settlement offer is made, the mediator will present it to the other side.
Few cases settle upon the making of the first offer, but the mediator will try to keep the discussions going. The mediator will try to make sure that both parties have fully evaluated the strengths and weaknesses of their respective positions, and that they understand the other party's positions. The mediator may determine that a further joint session is necessary and bring the parties back together for further joint discussions.
Mediation is a very flexible process. That said, mediation has a number of fundamental characteristics:
- Mediation is confidential. What is said in mediation or any settlement offers made in mediation will not be admissible in court if the case does not settle in mediation.
- Mediation is non-binding. This means that the mediator does not decide the case or reach a decision.
- However, if the parties agree to a settlement at mediation, that settlement agreement will be reduced to writing and will be binding.
How Is Mediation Different From Arbitration?
Many persons (and even some lawyers) confuse mediation and arbitration. Arbitration is another mechanism for resolving disputes outside of the court system. In arbitration, the parties agree to have their dispute resolved by an arbitrator (or sometimes a panel of three arbitrators).
In arbitration, the parties present their respective cases to the arbitrator or panel. Although the process tends to be more informal than a court case, arbitration hearings in the U.S. tend to proceed much as a case would proceed in court, with each side putting on witnesses (who are cross-examined by the opponent) and presenting documentary evidence.
Arbitrators do not try to assist the parties in reaching their own agreement, as is the case in mediation. Rather, in arbitration, there will be a winner and a loser, just as in court. Arbitration awards are binding in most circumstances and will generally not be overturned by a court.
In arbitration, the parties present their respective cases to the arbitrator or panel. Although the process tends to be more informal than a court case, arbitration hearings in the U.S. tend to proceed much as a case would proceed in court, with each side putting on witnesses (who are cross-examined by the opponent) and presenting documentary evidence.
Arbitrators do not try to assist the parties in reaching their own agreement, as is the case in mediation. Rather, in arbitration, there will be a winner and a loser, just as in court. Arbitration awards are binding in most circumstances and will generally not be overturned by a court.
Why Has Mediation Become So Popular?
Mediation has become a popular means for resolving lawsuits and claims for many reasons. A primary reason is because mediation works, and, more often than not, produces a settlement or begins a dialogue that results in a settlement. Another primary reason is that, when compared to court or arbitration proceedings, mediation is inexpensive.
There are many other reasons why mediation is popular and why it works:
A "Day in Court." In many instances, litigants will say "all I want is my day in court." What many people really mean is that they want an opportunity to have their say, to put their side of the dispute forward to the other side in front a neutral party. In other words, they want to be heard. Although mediation is not technically a "day in court," it can be a darned good substitute.
Control Over the Outcome. Mediation also allows the parties to remain in control of the outcome. A mediator does not decide the case, and a settlement is reached only if both parties agree. In court or arbitration, control is given, depending on the case, to the judge, the jury, or the arbitrators.
Creative Solutions. Mediation also allows creative resolutions that are simply not possible in court or arbitration. In court or arbitration, the remedies are generally limited to an award of money damages, or an injunction (an order to do or cease doing something). In mediation, the possible outcomes are limited only by the will of the parties. For example, two businesses engaged in contract litigation might be able to settle by entering into a new contract that better meets their needs. Intellectual property disputes can often be resolved by a cross-licensing arrangement. If one party is not willing to pay money to the other, perhaps they are willing to agree to buy a designated quantity of the other party's products. The possibilities are limitless, and a mediator may be able to suggest alternatives the parties have not considered.
Confidentiality. Because mediation is confidential, it can be particularly useful in certain types of disputes. For example, in a trade secret dispute, the confidential nature of mediation may provide a much better forum than court, even with a confidentiality order in place. An insurer or commercial party may wish to settle a particular dispute, but may wish to avoid "setting a precedent" for parties with similar claims. In other contexts, both parties may have an interest in avoiding public disclosure of details regarding employment or business relationships. .
There are many other reasons why mediation is popular and why it works:
A "Day in Court." In many instances, litigants will say "all I want is my day in court." What many people really mean is that they want an opportunity to have their say, to put their side of the dispute forward to the other side in front a neutral party. In other words, they want to be heard. Although mediation is not technically a "day in court," it can be a darned good substitute.
Control Over the Outcome. Mediation also allows the parties to remain in control of the outcome. A mediator does not decide the case, and a settlement is reached only if both parties agree. In court or arbitration, control is given, depending on the case, to the judge, the jury, or the arbitrators.
Creative Solutions. Mediation also allows creative resolutions that are simply not possible in court or arbitration. In court or arbitration, the remedies are generally limited to an award of money damages, or an injunction (an order to do or cease doing something). In mediation, the possible outcomes are limited only by the will of the parties. For example, two businesses engaged in contract litigation might be able to settle by entering into a new contract that better meets their needs. Intellectual property disputes can often be resolved by a cross-licensing arrangement. If one party is not willing to pay money to the other, perhaps they are willing to agree to buy a designated quantity of the other party's products. The possibilities are limitless, and a mediator may be able to suggest alternatives the parties have not considered.
Confidentiality. Because mediation is confidential, it can be particularly useful in certain types of disputes. For example, in a trade secret dispute, the confidential nature of mediation may provide a much better forum than court, even with a confidentiality order in place. An insurer or commercial party may wish to settle a particular dispute, but may wish to avoid "setting a precedent" for parties with similar claims. In other contexts, both parties may have an interest in avoiding public disclosure of details regarding employment or business relationships. .
