What is Mediation?
Alternative Dispute Resolution via Mediation
Mediation is a form of alternative dispute resolution (ADR) where the parties in dispute sit down with an independent party who attempts to facilitate a settlement of the dispute by agreement. Unlike arbitration, the other common form of alternative dispute resolution, the mediator does not act as a judge nor render a decision. Instead, the role of a mediator is to attempt to help the parties reach an agreement without the need for a trial or arbitration hearing. Thus, the focus is on finding a resolution, rather than on proving that one party or the other is wrong or at fault.
What Happens During Mediation?
The mediation process may differ slightly depending on the mediator and the case type, but the process is more informal than a court proceeding, and generally involves the following steps:
- An introductory meeting with both parties and their attorneys, in which the mediator explains how the process will work
- An opportunity for the parties to explain the issue or issues they seek to resolve
- An opportunity for the mediator to ask questions of the parties to hone in on and clearly define the issues
- One-on-one sessions between the mediator and each party
Depending on the mediator and the type of case, the mediator may bring the parties back together to review the final resolution and sign an agreement, or may draft an agreement based on his or her individual discussions with each party and submit to each in turn. Often, an issue that might have required multiple days (or even weeks) in trial can be resolved in a single day of mediation, or even a few hours.
The Advantages of Mediation
Mediation isn’t right for every situation. But, when the parties are willing to attempt to reach a compromise, mediation offers several benefits:
- Mediation can be less time-consuming than litigating a dispute, and, if successful, results in a quicker resolution
- Mediation can be significantly less expensive than resolving a conflict in court
- Mediation typically takes place behind closed doors, whereas testimony and other evidence at trial becomes a matter of public record
- Since mediation helps the parties reach an agreement, rather than handing a win to one side, it offers a greater sense of control and satisfaction with the outcome
- Mediation is less stressful and contentious than litigation, meaning that the process may take less of an emotional toll and it may be easier for the parties to move forward.
The mediation process itself has no binding effect unless the parties come to an agreement. Furthermore, and there is no decision-maker in the mediation process. However, if certain procedural requirements are followed, the agreement reached during process becomes a binding contract, and may be incorporated into a court order.
When is Mediation Appropriate?
Mediation is an option in most civil cases, from personal injury suits to contract disputes. Many Civil District Courts in Harris County require parties to either mediate or attempt some other form of Alternative Dispute Resolution before going to trial. It is particularly encouraged in divorce cases involving children because bringing the parties together to negotiate an agreement that both are willing to accept can facilitate future communications and cooperation.
In some cases, the court may order the parties to attempt mediation before proceeding to a contested hearing. In others, the parties may opt for mediation on their own, either before a civil case is filed or in an attempt to settle the case before trial.
What if No Resolution is Reached?
If the parties are unable to reach an agreement, the next step is typically to proceed as they would have if mediation had not been attempted, by submitting the matter to arbitration or proceeding with a civil lawsuit. Because mediation is relatively inexpensive and takes little time compared with a more formal legal proceeding, there is usually little downside to attempting mediation before pursuing other avenues. However, successful resolution of a case requires a good faith effort on the part of both parties.
The Role of Attorneys
Parties seeking to resolve a civil dispute may proceed to mediation without legal representation, or may go through the mediation process with their attorneys. While some parties may be inclined to attempt mediation without hiring an attorney in the hopes of saving money, there are risks associated with that approach. Although the mediator may be an attorney, he or she will not be able to provide legal advice to either party. That means that a person who goes through mediation without the benefit of counsel may not fully understand the legal ramifications of the agreement, or may overlook important issues.
When each party is represented by an independent attorney, the parties have an opportunity to ensure that the legal issues are properly formed, that all important issues are addressed and resolved in the mediation process, and that each fully understands the legal implications of the agreement. At Simmons and Fletcher, P.C., we regularly represent our client at mediation. Furthermore, we our clients to attempt case resolution via mediation whenever possible, but only with the presence and assistance of counsel.
Paul Cannon has practiced personal injury trial law since 1995. He is Board Certified in Personal Injury Trial Law (2005). He has earned recognition as a Super Lawyer by Thompson Reuters in 2017 & 2018, and as a Top 100 Trial Lawyer by the National Trial Lawyers Association in 2017. He is a Shareholder, trial lawyer and online marketing manager at Simmons and Fletcher, P.C. His legal writings have been published by the Texas Bar Journal, Business.com, Lawyer.com HG Legal Resources, Lawfirms.com, and others. He has been asked to give education talks and media interviews on dog bite law.