Most legal disputes settle. Often times the parties have already hired attorneys and paid hefty legal fees so that their lawyers can negotiate back and forth to come to a resolution prior to going to court. Sometimes lawyers hire a mediator and the parties split the cost, in addition to legal fees they’ve already paid. Parties may even pay lawyers for their time during the mediation.
Studies indicate that most parties, even the most opposed parties, resolve their disputes in mediation, even if they have never tried mediation before. Overall, mediation is about 75% effective.
If most legal disputes settle anyway, why choose mediation instead of hiring lawyers and letting them resolve the dispute between them? Most lawyers charge an hourly rate or a flat fee that estimates the time or work involved in handling your case. If two parties pay separate lawyers an hourly rate of say, $185 per hour, and both have to work 10 hours to get your case resolved, you’ve spent at least $3,700 to settle your case between the two parties, not including additional filing fees or charges.
In contrast, a mediator usually charges an hourly or flat fee as well, but the fee is split between the parties, and mediations average 4 hours. (Obviously, some are longer and some are shorter.) Even if the mediator charges the same hourly rate, at 4 hours, you’ve only spent $740, and you will split that fee with the other party, so you are only down $370 in that hypothetical. (Rates vary for lawyers and mediators. Check with your mediator.) It can be much more economical.
Having Your Say
Mediation is not binding. In other words, the mediator only facilitates communication between the parties and does their best to find common ground to encourage resolution that both parties can live with. Nothing the mediator says or does is binding and, unless you sign a settlement document that you agree to, you can walk away from a mediation if it isn’t going your way.
The mediator is not a judge or a lawyer for the purposes of your mediation. They do not and cannot offer legal advice or tell you what a judge might or might not do. Instead, they get to the heart of the dispute. They listen to each party and help them craft a settlement that takes both sides’ interests into account.
This is not true of other forms of dispute resolution, including arbitration or going to court. In a courtroom, the judge is going to apply the law to your particular set of facts and decide based on what the statues and cases say. If the facts are not in your favor, you are likely to lose and you have nothing to say about it. If the judge orders you to do something, you must do it. You may not like the result, and you may end up paying part or all of the other side’s fees and costs in some types of cases.
Even if you decide to appeal and see if the higher court will see your side, it can drag out your case for years, and you still may not get the result you want. In fact, most appeals do not result in the judge being overturned.
In mediation, you will not be bound to anything unless you agree to it.
More often than not, the people who we have disputes with are people with whom we’d prefer to keep a positive relationship. It may be that we have a legal issue with our in-laws, a sibling, a neighbor, an employer, a vendor or contractor we have used for years, a friend, a spouse or mate, or someone else who it would benefit us to maintain healthy ties to going into the future.
Mediation can help both parties see the other side’s point of view and repair misunderstandings and hurt feelings so that each party’s reputation remains intact and they can move forward without any grudges or smudges.
When you go to court, you should dress for court and present yourself in a way that helps the judge to look favorably upon you. You want to put your best foot forward, and you may feel anxious because you don’t know the law and the procedures of the courtroom. There are often other people waiting to have their cases heard after you, and they are allowed to sit and hear your testimony even though they are strangers and a court reporter will type every word you say into the record. You are going to be rushed through, in many cases, because the judge has a full calendar and needs to move through everything on the docket. It can be intimidating and scary.
In a mediation setting, you may dress and present yourself how you most feel comfortable. There are no code rules of procedure or conduct that you have to obey, and the law is irrelevant. Yes, I will repeat that. The law is irrelevant. What matters in a mediation is an agreement that both parties can live with.
You won’t be penalized if you didn’t follow the procedures, file the right paperwork, or wear the right shoes. You will have time to be heard. No one will rush you or cut you off. You will be in a private room where total strangers will not be allowed to hear your private business. Nobody will record every word you say.
Flexibility & Time
In a litigated case, one that goes to court, you or your lawyer will receive a notice from the court and most of the time the judge will set a date and time and you must be there. There is little room for flexibility that meets your schedule, because the court has many matters to hear and is often backed up.
You may not get a trial date for two years in some types of cases. Even if you get a date, you may be second or third in line for that slot, so it may not go on that date anyway. Each time you have a hearing, you likely have to take time off of work at some inconvenient hour and often end up with another date to return to court again.
In mediation, the facilitator will schedule a time that is within their business hours, but one that you agree to and that meets your schedule. You can plan ahead and take time off of work one time to resolve the matter. You may even luck out and get a slot that is early enough or late enough in the day to avoid missing work at all.
As you can see, mediation saves time, frustration, money and often saves face all while effectively resolving your dispute.
If mediation sounds right for your dispute and you’d like to know how it works or schedule a mediation, I’d be happy to consult with you.
This article is for general information purposes only. It is not intended as legal advice and it does not constitute establishment of an attorney-client relationship with anyone who reads it. Keep in mind that the law changes frequently based on legislation and case law. If you have a legal issue that relates to this article’s subject matter, please consult with a licensed attorney to determine your individual rights and to clarify the law with respect to your particular set of facts. If you live in another state, please consult a licensed attorney in your state. Dana Boyle is licensed in the state of Wisconsin.