Generally, when people think about legal disputes, they think that that means courtrooms and lawsuits. Not all legal disputes, however, must go to court. Disputes which wind up in court generally become expensive and drawn out. Further, the parties are placing the outcome of their case in the hands of a judge or jury. Because of these concerns, alternatives to going to court, broadly termed “Alternative Dispute Resolution” or “ADR,” have become increasingly popular over the years. One such ADR solution is mediation.
Mediation is an informal process where a neutral third-party “mediator” helps the parties resolve their dispute. The mediator does not decide issues or decide what the resolution should be. Mediators typically describe their role as facilitating a discussion between the parties which will help them agree on a resolution. Mediation is non-binding, meaning that if the parties cannot agree on a resolution, they are free to end the mediation process and proceed to court.
The mediation process is very different than being in court. Whereas courts have strict rules of procedure and evidence, mediation is much less formal where the rules of evidence do not apply and the parties craft the rules and procedures to be used during the process. Unlike court, there is no presentation of evidence and testimony by witnesses and the mediation is conducted in the comfort of an office instead of the structure of a courtroom. Instead of testimony, lawyers, and sometimes the clients (depending on the circumstances and desire of the client), informally discuss the facts of the case. This difference in procedure between court and mediation can help the parties determine their true interests in a way which being in court cannot, and that can help lead to a way to resolve the case.
Mediation offers many advantages over a traditional lawsuit in court. One of the most attractive advantages is that mediation can be a quick resolution. Whereas court cases can linger for years, mediations can be scheduled within weeks of the parties agreeing to mediation and, usually, the mediation is complete in one day (although in some cases that one day can be a very long day!).
Additionally, mediation is generally less expensive than a lawsuit. Because mediation is quicker than court, that means less attorneys’ fees. For plaintiffs, less attorneys’ fees for a defendant can mean that the defendant has more money to put towards a settlement.
Further, mediation is private and confidential. These days, many courts require electronic submission of documents. Once filed, the documents are publicly available via the internet. Even if a case is not filed electronically, court documents are public. Mediation offers the opportunity for parties to resolve their disputes in private. Moreover, everything that happens in the mediation is considered confidential. In many employment cases, such as sexual harassment cases, both the plaintiff and defendant consider it very important to be able to maintain the confidentiality of the dispute.
Finally, mediation gives the power of resolution to the parties. In other words, no matter how good your lawyer is, when you go to court, your case is ultimately decided by a judge or jury who may or may not believe your side of the case. In mediation, the parties work together to craft their own resolution. Moreover, courts are restricted in the type of resolution they can issue. Usually, courts award money damages. In mediation, the parties can agree to resolve their dispute in any manner. Typically this involves some payment of money, but can also include a creative solution specific to a particular situation, such as how to deal with a disputed piece of property.
Like anything, mediation also has its disadvantages. The mediation process typically does not allow the parties to use the tools of discovery available in a lawsuit. So, parties do not have the same access to information they might have in court. However, the parties can agree to exchange some information which they believe will help them reach a resolution.
Also, while mediation is less expensive than spending years in court, it is usually not free (although sometimes it is). Except in some cases where the court orders mediation, such as employment cases filed in the United States District Court Southern District of New York, the parties will have to pay for the cost of the mediator. This cost varies depending on the length of the mediation and the individual mediator’s fees.
In sum, mediation can be an excellent alternative to going to court. Also, mediation can be used even if a case has already been filed in court. The employment lawyers at Famighetti & Weinick have handled many mediations and can help you determine whether your case is one which could benefit from mediation. Further, our lawyers’ mediation experiences can help you prepare for the mediation and to feel comfortable about the experience.
If you have further questions about mediation or alternative dispute resolution, or if you need a lawyer to help with a mediation, contact Famighetti & Weinick, PLLC at 631-352-0050 or on the web at linycemploymentlaw.com.