The benefits of mediation in California compared to litigation are the topic of this blog post.
Mediation is gaining in popularity as a very effective way of resolving a dispute without the need for litigation.
This blog post will provide a brief description of the mediation process as well as the benefits of mediation compared to litigation.
MEDIATION PROCESS
Mediation involves a neutral third-party known as a mediator working with all of the parties involved in a dispute to come to a settlement that benefits the parties and that they are willing to accept.
The cost of mediation is typically shared by the parties.
The mediator’s job is to assist the parties in reaching a solution to their issues and to reach an agreement that the parties can accept. The mediator does not take sides or make judgments or provide advice to anyone. Generally the mediator will work towards examining the underlying causes of the problem and then discuss what solutions best suit the unique needs of each party.
The role of a mediator is to facilitate communications between the parties so that they can reach an agreement that the parties can accept.
Mediation can be either voluntarily agreed to by both parties or in some cases a judge may order the parties in a lawsuit to attempt mediation in the hopes of reaching a settlement. In a voluntary mediation both parties must agree to the mediation. Mediation is confidential and the terms of any settlement are not disclosed to any other parties not involved in the mediation hearing.
If the parties are unable to reach an agreement in mediation they still have the option of going to court. Any details about what was said at the mediation will not be disclosed or used at any court hearing.
MEDIATION IS FASTER THAN USING THE COURT SYSTEM
The first and most important benefit of mediation is that it is much faster than filing a lawsuit in Court. With the current Court funding situation in California the reality is that it may take years before a case actually comes to trial and appeals can take even longer.
However an agreement reached in mediation can often be obtained in only several hours or in several mediation sessions spread over a few weeks.
MEDIATION IS MUCH LESS EXPENSIVE THAN USING THE COURT SYSTEM
Using the civil justice system through the Court process can be very expensive and in some situations the costs can actually exceed the benefits. Civil litigation can not only be very expensive but the total cost can also be very hard to predict.
Another issue to consider is that in civil litigation the losing party can be required to pay the attorney’s fees for the other party. The focus in mediation is on resolving the case in a constructive manner rather than destroying the other party.
Mediation is much less expensive than litigation because the time is spent working to resolve the case instead of fighting it out in court with filing motions.
Mediation costs are generally more predictable because the parties are present for most (if not all) of the time the mediator spends on the case.
IN MEDIATION BOTH PARTIES GET TO DECIDE INSTEAD OF A JUDGE
Mediation differs from going to court in that both parties decide the terms of any settlement instead of having a judge decide. Both parties have the responsibility for deciding the terms of any settlement.
In mediation instead of the dispute being viewed as a battle in court it is viewed as a problem to be solved. All decisions are made by the parties themselves, instead of someone else. This can be very appealing as many individuals would prefer to make their own choices, particularly in a situation where there may be complex tradeoffs instead of handing that power over to a judge.
Because the parties are in control during the mediation process they also control the outcome of the mediation.
MEDIATION IS LESS FORMAL THAN GOING TO COURT
The lack of formality in the mediation process allows the parties to be more engaged than they would be in court litigation in that the court system has many rules and procedures that are designed to separate the parties. Since a mediator deals directly with the parties they can convince the parties to focus on determining what their needs and interests are instead of simply repeated their stated positions.
MEDIATION IS CONFIDENTIAL
Mediation typically takes place in a mediator’s office or a lawyer’s office rather than in a public courtroom. As a general rule parties in mediation are allowed to decide what information is provided on the paperwork. Mediation allows the parties to avoid the often ugly allegations and personal information that ends up in the public record.
Court cases are public including the records and transcripts. Mediation is confidential as any evidence introduced during mediation cannot be used or even disclosed at any court hearings.
The confidentiality of mediation is another compelling reason to consider using mediation.
SATISFACTION RATES ARE HIGHER WITH MEDIATION
Parties that used mediation are more likely to report higher satisfaction than parties that used the court system. Due to the active involvement of the parties during the mediation process they are more likely to comply with the terms of any settlement reached during the mediation than parties that used the court system.
Statistics show that parties that use mediation reach a settlement approximately 70 to 80% of the time.
The author of this blog post, Nathan Mubasher, earned a post-doctorate LL.M. in International Financial Transactions with emphasis on Money Laundering and Compliance at Thomas Jefferson School of Law, a J.D. at American College of Law, and his B.A. at University of California, Riverside. He is a member of the State Bar of California and is admitted to practice before all state and federal courts in California. He is also an active member of the American Health Lawyers Association and the California Society for Healthcare Attorneys. He has performed over 1,000 mediations and has Alternative Dispute Resolution training from the United Nations Institute for Training and Research.
DISCLAIMER:
Thank you for reading. I hope I could have been educational as I endeavor to provide my knowledge as a free public service. Please note that all the materials and information on this blog are general analyses made available for the public’s general informational purposes only. These analyses are not in any way intended to serve as specific legal advice to be applied in your particular situation. Although I am an attorney, absent a signed retention and engagement letter, I am not your attorney. There are no exceptions to this rule. Moreover, you shall not rely on the information I am providing you, as it is only for your general knowledge and educational purposes, since this information would likely change based on any additional facts. Thus the transmission and receipt of information on this blog by anyone does not form or constitute an attorney-client relationship. My knowledge of laws is limited to California. Anyone receiving any information on this blog should not act upon the information provided without first obtaining the services of professional legal counsel licensed in their respective jurisdiction. Best of luck.
CONTACT INFORMATION FOR NATHAN MUBASHER:
Law Offices of Nathan Mubasher
2621 Green River Rd, Ste 105 PMB 403
Corona, CA 92882
tel 1-800-691-2721 | fax 1-310-356-3660
www.mubasherlaw.com
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