Q: What is mediation?
A: “Mediation is any process in which a neutral third party, the mediator, facilitates communication and negotiation between parties to assist them in reaching a voluntary agreement regarding their dispute.” Through the mediation process, a mediator facilitates a discussion with parties and/or their attorneys in an effort to resolve disputes by mutual agreement in an expeditious manner.
Q: What is a mediator?
A: A mediator is “an individual who conducts mediation.” Mediators are neutral third parties who facilitate communications between parties involved in a dispute to reach a mutually acceptable agreement. Mediators assist parties with issue identification and problem solving. The mediator usually will meet separately with each side for private, more candid discussions. A mediator may be a court employee, a volunteer helping a court, or a lawyer or other professional in private practice. Although many mediators are also lawyers, that credential is not required.
Q: What kinds of cases or disputes can go to mediation?
A: Just about any type of case can be mediated successfully. Courts often use mediation for cases involving business, personal injury, real estate, foreclosure, family law, small claims, as well as many other types of cases. Mediation is also used outside of court for cases involving consumer complaints, land use, environmental issues, as well as neighborhood disputes.
Q: Will the mediator issue a decision in my case?
A: No. The mediator has no decision-making authority. The mediator assists parties and/or their attorneys to look at the case more objectively, discuss various options, and review strong and weak points of each side’s position and listen to each side so the parties can find a mutually acceptable resolution to their dispute.
Q: What does the mediator tell the judge?
A: Very little. The mediator may tell the judge whether the mediation occurred or has terminated, whether a settlement was reached, and who attended. Beyond those points, a mediator cannot report, analyze, evaluate or make findings or recommendations to a court or judge.
Q: Should I bring witnesses and exhibits to the mediation?
A: No. Mediation is not like a trial or arbitration. While the attorneys, parties, and the mediator will discuss the many aspects and specifics of the case, there are no witnesses, no testimony, no exhibits, no objections, no cross- examination, and no arguments. You may, however, bring documents that you believe may help to further explain, clarify or update the factual situation from your perspective.
Q: Will I be expected to testify?
A: No. Mediation is not like a trial. Rather, through the mediation process, parties participate directly in the discussions and make decisions about how to proceed, whether or not to reach a settlement, and if so, what exactly that is.
Q: Can the mediator tell me what my case is worth?
A: No. The mediator is not there as a judge, juror, or arbitrator of the case and will not make an assessment or recommendation about your case. You and your attorney should evaluate your case and weigh the benefits of settling. The mediator, the attorneys, and the parties may, however, discuss the costs of going forward with litigation as compared to the benefits of settlement.
Q: Will the other side be there?
A: Generally speaking, and for most disputes, the other side will be there, and the parties or their designees are often at the same table. The mediator may meet separately with each side for private, more candid discussions, but it is often important for all parties to be able to listen to and learn about each other’s point of view on the way to a resolution.
Q: I want my day in court. Why should I settle?
A: You have every right as a citizen to seek a fair trial in court. Some find that their case needs a trial because of an unusual legal question, a factual dispute, or a serious disagreement about a fair settlement value. However, a trial is not the only legal choice or option available to resolve disputes successfully. Some estimates suggest more than 95 percent of all U.S. cases filed never go to trial. Before going to trial, you should consider factors such as time, expense, court delays, possible appeal, the risk of a bad result, the facts of the case becoming part of a public record, and stress.
Q: What happens if we can’t settle?
A: If the parties are not able to reach a mutually acceptable resolution on their own through mediation, several things may happen. The mediator may schedule a follow-up mediation. Sometimes, certain legal questions may need to be resolved by the judge through motions before further negotiations occur and the attorneys may agree to negotiate further later on, either with or without formal discovery. Or the case could ultimately go to trial. There is no penalty or extra cost for using mediation, beyond the mediator’s fee, if any. One of the strengths of mediation is that parties neither gain nor lose any rights or access to other means of dispute resolution if they try mediation first!
6/3/2016This "Law You Can Use" consumer legal information column wa provided by the Ohio State Bar Association. It was originally prepared by Harold Paddock, a mediator with the Clermont County Court of Common Pleas. It was updated by Marcie Patzak-Vendetti, director of Court Mediation for the Mahoning County Court of Common Pleas, Juvenile Division.