Why agree to mediation?
Mediation can be used in all sorts of circumstances where there is a disagreement or dispute between two parties. Mediation is rarely used for criminal cases. Examples of circumstances where mediation can be of use include:
- disputes between divorcing spouses about child custody, spousal support and asset distribution;
- after a complaint about workplace discrimination or harassment has been brought to the EEOC or equivalent state anti-discrimination agency;
- disputes between landlord and tenant;
- business disputes;
- personal injury cases;
- disputes between family members or neighbors.
Mediation allows the disputing parties to discuss their differences in a neutral environment with a person in attendance called the mediator. It is the mediator’s job to present an environment in which disagreements and disputes can be heard without the discussion becoming unfocused, chaotic or unruly. The aim of mediation is to achieve a negotiated agreement which is acceptable to both parties without the parties having to resorting to go to court. Not all mediation sessions are successful and in some cases the mediator may agree to more than one mediation session. It is not the job of the mediator to take one side or another or even to intervene in the negotiations by presenting his or her legal opinion.
If mediation reaches an agreement between the two parties attending, then it is important that a signed agreement is drafted, drawn up and signed before anyone leaves the session. Whatever might be agreed at a mediation session is not legally binding unless there has been a signed agreement.
The mediation process
Mediation in some cases may be mandatory, e.g. disputes about child custody or child support in a divorce settlement. Usually, it is offered when two parties cannot agree on a way of resolving their disagreement and yet do not want to take the more serious and usually much more expensive step of resolving the matter in a civil court.
Mediation is a confidential and normally voluntary process in which the mediator, usually an experienced, neutral person, arranges a meeting between the disputing parties. Attorneys do not necessarily have to be present and in most cases, mediators prefer the parties themselves to be able to present their cases face to face.
At the beginning of the meeting, the mediator explains the procedures and rules in mediation. This is followed by each party in turn stating their case and why they are in disagreement. The mediator may ask questions during this phase in order to enhance understanding, but will refrain from making an opinion or giving advice.
At some stage in the mediation session, the mediator may have private meetings with each party to get a better understanding of that party’s point of view and assess whether there are grounds for negotiation and agreement.
Negotiation between the two parties may then be able to reach an agreement.
Any agreement between the two parties must be drawn up and presented to both parties for signing. At this point, it will be understood that the agreement becomes binding and is no longer negotiable. Any further failure to follow what has been agreed may be used in court against the party who has decided not to honor the agreement.
Why a signed agreement should be made before the end of mediation
Mediation can be frustrating and stressful as well as tiring. Even if a verbal agreement has been made, it can be tempting to adjourn the mediation and allow attorneys hired by the parties to draw up a formal agreement after mediation has ended. This is not sensible as without a binding, signed agreement made at the end of the mediation session, it allows the possibility for one party or the other to try and make changes or amendments to what had already been agreed. If there is then further disagreement to the changes or amendments proposed and the case is forced to be heard in a civil court, it is likely that the original unsigned agreement will not be upheld because its validity was not confirmed at the time of the mediation session.
Mediation does not necessarily always end in agreement. The gap between the disputing parties may be so great that the relatively benign environment of mediation may not be conducive to any compromise. In these situations, the only recourse may be to take the matter to court and allow a judge or judge and jury (depending on the nature of the dispute) decide. Even then, it may still be possible to make an appeal against a decision which is not acceptable to one of the parties. All this can get very expensive as there are court fees to pay and rapidly mounting legal fees. Mediation may present a compromise that could be difficult to swallow, but the alternative may be a lot more potentially damaging.
For more information, visit our website Mucci Legal or contact us for a free legal consultation today.