Frequently Asked Questions
WHAT IS MEDIATION?
Before defining mediation, we have to set the stage for the cast of characters that will be involved in mediation. First, mediation cannot exist when there is peace. Therefore, there needs to be two (or more) people involved in an dispute, conflict, or argument (called “Parties”).
The mediator is a person with mediation certification, a college degree, and many times a law degree, therapy degree, other forms of higher education. They are not involved in the dispute and are third party neutrals (called “Mediator”) and they help the Parties resolve their conflict.
Some mediators do this by helping people have a productive conversation about their needs and concerns. Other mediators do this by sizing up your conflict and telling you what they think about it. Either way, the mediator helps guide the Parties through the process. Very often, an agreement will result from the resolution of the conflict. Agreements that are signed by both parties can often be legally binding. So, in essence, while you have received help from a mediator resolving your conflict, in reality, you CHOSE to resolve your conflict instead of letting someone else (such as a judge) decide for you. Said another way, Mediation is a process for working through conflicts, or disagreements between people. A third person (“Mediator”) who is neutral to your conflict helps you have a conversation about the conflict, find possible solutions, & try to come up with an agreement.
WHEN LOOKING FOR INFORMATION, WHY DOES MEDIATION SEEM TO CHANGE ITS DEFINITION DEPENDING ON WHO I ASK?
Mediation arose out of the civil rights movement in the 1960's. Therefore the spirit of mediation is to help people from completely different world views work through conflict by learning to understand each other better. As it developed over the years, it branched out into different areas and therefore different professional communities. From our experience, their seems to be a vast difference in the definition of mediation and the experience of participating in mediation because there are so many different areas of life that are conducive to mediation. For example, the mediation experience going through a divorce will be completely different than the mediation experience in a car accident law suit. The mediation experience via a local community mediation program will be completely different than the mediation experience with a retired Judge or veteran litigator.
Some mediators are aggressive and do not allow parties to talk to each other in the same room- other mediators allow the parties to lead the way and do not make judgement or assess blame. The greatest benefit of mediation is that it is VOLUNTARY, meaning, you will not be forced to make an agreement. From our perspecitve there are three main types of mediation: Transformative, Facilitative, and Evaluative.
For more information on the types of mediation, see the link on our "Resources" page.
IS MEDIATION THE SAME THING AS ARBITRATION? IS MEDIATION THE SAME THING AS A SETTLEMENT CONFERENCE?
Arbitration involves the presentation of evidence to an arbitrator for a legally binding decision. Arbitration can be effective, but it is generally more time consuming and expensive than mediation, plus the parties give up control of the outcome (although high-low agreements can be used to provide a limited range for the decision).
In a judicial settlement conference, parties submit informal evidence to a judge for an advisory decision. However, any time an outside party is rendering an opinion, particularly about case value, there is a risk that one party will strongly disagree with the opinion and the other party will be locked in to a settlement at that figure. This can actually impair further settlement efforts. Remember that almost every case settles anyway, so the role of the neutral should be to help parties move toward settlement. For this reason, mediation is often preferred to arbitration or settlement conferences.
WHAT ARE THE ADVANTAGES OF MEDIATION OVER LAWSUITS?
QUICK~ once both parties agree to mediate, mediation sessions can be scheduled quickly; as quickly as 1 week- 1 month. Nearly 1.4 million lawsuits are filed in California every year so do not anticipate your lawsuit will end very quickly (California Citizens Against Lawsuit Abuse 2012).
INEXEPNSIVE~ Lawyers charge by the hour & usually require a minimum of $5,000-$20,000 before they start working on your case. Most often, the amount of money you give a lawyer ("retainer") is not enough to cover the cost of legal work, especially if you are pursuing court. It isn't unusual for legal fees to range from $20,000-$60,000 & higher. With mediation, an entire conflict, no matter how complicated can often be completely resolved in the amount that you give the attorney to start your case (sometimes even less!).
CONFIDENTIAL~ Documents prepared for the purpose of mediation, documents created in the course of the mediation, & documents relating to the mediation are "privileged settlement discussions" are NOT admissible in any legal proceeding without the written consent of all parties. All statements made during the mediation are "privileged settlement discussions" & are NOT admissible in any legal proceeding without the written consent of all parties (CA.EVI. CODE, §703.5, §1115-1128). Confidentiality can be protected in mediation. Lawsuits do not provide for such confidentiality as parts of your case will end up as public records.
CONVENIENT~ mediation sessions can be sometimes be scheduled at any location that is convenient for parties, any time of day, almost any day of the week.
EFFECTIVE~ more than 90% of all mediations result in long-term resolution of mutual satisfaction. 95% of all agreements reached achieve lasting results (Los Angeles County Bar Association statistic, 2006). Even if you don't settle the dispute in mediation, parties often settle the dispute after the mediation is over!
EMPOWERING~ with mediation, YOU are in control of the decisions you make, the information you share, & any agreement that may arise. You hold the power to unlock the conflict. Even if you spent eight hours in a room mediating, no one will force you to sign anything. If you change your mind before you sign, no one can stop you from ending the mediation session.
LESS STRESSFUL~ Feeling Furious? Anxious? Controlled? Trapped? Worried? Fearful? Mediation helps you resolve your conflict faster & in a more satisfying way so you can move on with your life more happily! Even if you win in court, you still lose out on a lot of time, money, & aggravation. Lawyers speak their own language which is difficult for non-lawyers to understand. The legal system is confusing & you have to pay your lawyer to explain the process to you. Mediation is YOUR process so you control how the process unfolds. You control when & where & how the conflict gets resolved. This gives you greater peace of mind.
WHAT ARE SOME COMMON MEDIATION MISCONCEPTIONS?
#1-"The other side argues too much, mediation will be a waste of time." Mediation is built for people in conflict! People that like to argue cost a lot of money in court but not in mediation. If they are arguing that means that they are sharing information-This is exactly what needs to happen in mediation to move things faster. So be sure to give mediation a chance and you might be very happily surprised by the results.
#2-"I've already tried to talk to them; they don't want to work it out; it's useless to try." Mediators are trained neutrals; Even if you tried to talk to them, doesn't mean that they won't talk to a mediator! Sometimes people in conflict shut down but often a mediator can enable parties to communicate. Give mediation the opportunity to help you.
#3-"It's too late, they already have a lawyer." It's never too late to mediate! The best time to resolve conflict is BEFORE a lawsuit is filed. The fresher the conflict the less people have their feet dug into their "position". Mediation can be used at ANY stage of a conflict, even the night before trial. It's NEVER too late to try to mediate.
#4-"I get upset or intimidated and I'm not comfortable in a room with them." Besides situations of abuse (which are not appropriate for mediation), Mediators are trained to be sensitive to your needs & concerns. Even if you cannot sit in the same room with the other party, the mediator can still mediate using a variety of techniques.
Please feel free to email us with your questions, comments, or insights.
WHAT IS MEDIATION?
Before defining mediation, we have to set the stage for the cast of characters that will be involved in mediation. First, mediation cannot exist when there is peace. Therefore, there needs to be two (or more) people involved in an dispute, conflict, or argument (called “Parties”).
The mediator is a person with mediation certification, a college degree, and many times a law degree, therapy degree, other forms of higher education. They are not involved in the dispute and are third party neutrals (called “Mediator”) and they help the Parties resolve their conflict.
Some mediators do this by helping people have a productive conversation about their needs and concerns. Other mediators do this by sizing up your conflict and telling you what they think about it. Either way, the mediator helps guide the Parties through the process. Very often, an agreement will result from the resolution of the conflict. Agreements that are signed by both parties can often be legally binding. So, in essence, while you have received help from a mediator resolving your conflict, in reality, you CHOSE to resolve your conflict instead of letting someone else (such as a judge) decide for you. Said another way, Mediation is a process for working through conflicts, or disagreements between people. A third person (“Mediator”) who is neutral to your conflict helps you have a conversation about the conflict, find possible solutions, & try to come up with an agreement.
WHEN LOOKING FOR INFORMATION, WHY DOES MEDIATION SEEM TO CHANGE ITS DEFINITION DEPENDING ON WHO I ASK?
Mediation arose out of the civil rights movement in the 1960's. Therefore the spirit of mediation is to help people from completely different world views work through conflict by learning to understand each other better. As it developed over the years, it branched out into different areas and therefore different professional communities. From our experience, their seems to be a vast difference in the definition of mediation and the experience of participating in mediation because there are so many different areas of life that are conducive to mediation. For example, the mediation experience going through a divorce will be completely different than the mediation experience in a car accident law suit. The mediation experience via a local community mediation program will be completely different than the mediation experience with a retired Judge or veteran litigator.
Some mediators are aggressive and do not allow parties to talk to each other in the same room- other mediators allow the parties to lead the way and do not make judgement or assess blame. The greatest benefit of mediation is that it is VOLUNTARY, meaning, you will not be forced to make an agreement. From our perspecitve there are three main types of mediation: Transformative, Facilitative, and Evaluative.
For more information on the types of mediation, see the link on our "Resources" page.
IS MEDIATION THE SAME THING AS ARBITRATION? IS MEDIATION THE SAME THING AS A SETTLEMENT CONFERENCE?
Arbitration involves the presentation of evidence to an arbitrator for a legally binding decision. Arbitration can be effective, but it is generally more time consuming and expensive than mediation, plus the parties give up control of the outcome (although high-low agreements can be used to provide a limited range for the decision).
In a judicial settlement conference, parties submit informal evidence to a judge for an advisory decision. However, any time an outside party is rendering an opinion, particularly about case value, there is a risk that one party will strongly disagree with the opinion and the other party will be locked in to a settlement at that figure. This can actually impair further settlement efforts. Remember that almost every case settles anyway, so the role of the neutral should be to help parties move toward settlement. For this reason, mediation is often preferred to arbitration or settlement conferences.
WHAT ARE THE ADVANTAGES OF MEDIATION OVER LAWSUITS?
QUICK~ once both parties agree to mediate, mediation sessions can be scheduled quickly; as quickly as 1 week- 1 month. Nearly 1.4 million lawsuits are filed in California every year so do not anticipate your lawsuit will end very quickly (California Citizens Against Lawsuit Abuse 2012).
INEXEPNSIVE~ Lawyers charge by the hour & usually require a minimum of $5,000-$20,000 before they start working on your case. Most often, the amount of money you give a lawyer ("retainer") is not enough to cover the cost of legal work, especially if you are pursuing court. It isn't unusual for legal fees to range from $20,000-$60,000 & higher. With mediation, an entire conflict, no matter how complicated can often be completely resolved in the amount that you give the attorney to start your case (sometimes even less!).
CONFIDENTIAL~ Documents prepared for the purpose of mediation, documents created in the course of the mediation, & documents relating to the mediation are "privileged settlement discussions" are NOT admissible in any legal proceeding without the written consent of all parties. All statements made during the mediation are "privileged settlement discussions" & are NOT admissible in any legal proceeding without the written consent of all parties (CA.EVI. CODE, §703.5, §1115-1128). Confidentiality can be protected in mediation. Lawsuits do not provide for such confidentiality as parts of your case will end up as public records.
CONVENIENT~ mediation sessions can be sometimes be scheduled at any location that is convenient for parties, any time of day, almost any day of the week.
EFFECTIVE~ more than 90% of all mediations result in long-term resolution of mutual satisfaction. 95% of all agreements reached achieve lasting results (Los Angeles County Bar Association statistic, 2006). Even if you don't settle the dispute in mediation, parties often settle the dispute after the mediation is over!
EMPOWERING~ with mediation, YOU are in control of the decisions you make, the information you share, & any agreement that may arise. You hold the power to unlock the conflict. Even if you spent eight hours in a room mediating, no one will force you to sign anything. If you change your mind before you sign, no one can stop you from ending the mediation session.
LESS STRESSFUL~ Feeling Furious? Anxious? Controlled? Trapped? Worried? Fearful? Mediation helps you resolve your conflict faster & in a more satisfying way so you can move on with your life more happily! Even if you win in court, you still lose out on a lot of time, money, & aggravation. Lawyers speak their own language which is difficult for non-lawyers to understand. The legal system is confusing & you have to pay your lawyer to explain the process to you. Mediation is YOUR process so you control how the process unfolds. You control when & where & how the conflict gets resolved. This gives you greater peace of mind.
WHAT ARE SOME COMMON MEDIATION MISCONCEPTIONS?
#1-"The other side argues too much, mediation will be a waste of time." Mediation is built for people in conflict! People that like to argue cost a lot of money in court but not in mediation. If they are arguing that means that they are sharing information-This is exactly what needs to happen in mediation to move things faster. So be sure to give mediation a chance and you might be very happily surprised by the results.
#2-"I've already tried to talk to them; they don't want to work it out; it's useless to try." Mediators are trained neutrals; Even if you tried to talk to them, doesn't mean that they won't talk to a mediator! Sometimes people in conflict shut down but often a mediator can enable parties to communicate. Give mediation the opportunity to help you.
#3-"It's too late, they already have a lawyer." It's never too late to mediate! The best time to resolve conflict is BEFORE a lawsuit is filed. The fresher the conflict the less people have their feet dug into their "position". Mediation can be used at ANY stage of a conflict, even the night before trial. It's NEVER too late to try to mediate.
#4-"I get upset or intimidated and I'm not comfortable in a room with them." Besides situations of abuse (which are not appropriate for mediation), Mediators are trained to be sensitive to your needs & concerns. Even if you cannot sit in the same room with the other party, the mediator can still mediate using a variety of techniques.
Please feel free to email us with your questions, comments, or insights.
