Why Choose Mediation Instead Of Litigation
Mediation is a voluntary process where a mediator helps tries to bring two parties together to settle a case. Sometimes judges order you to mediation, but there’s no obligation to settle a case in mediation. If you don’t like the settlement arrangements that are put together, you don’t have to agree to them. When either the court orders mediation or the parties agree to mediation, a mediator is hired or appointed. The mediator is usually a lawyer, but in Texas it doesn’t have to be. The mediator cannot be associated or affiliated with either party.
The mediator basically puts the parties in separate rooms, toggling back and forth from one side to the other, gathering information to put together a settlement to bring the parties together. The mediator can only share information between the parties if the parties give authorization. For example, you may want share something with the mediator so they can understand your position, but not one that’s shared with the other side. The mediator must take that to heart.
It is a lot less expensive to mediate a case than it is to go to trial. However, sometimes you just can’t settle cases in mediation. It is a lot less expensive to mediate a case than it is to go to trial. However, sometimes you just can’t settle cases in mediation.
If your case must go to trial, the mediator can never be called to testify about what happens in mediation, other than to say the case was either settled or not. They can never be called as a witness—that information is protected and non-disclosable.
Sometimes people use the terms “mediation” and “arbitration” interchangeably. They’re not interchangeable. An arbitration is a system when an arbitrator is appointed—a retired judge or an attorney that’s sitting as an arbitrator—to arbitrate the case. The parties present evidence, just as if you’re in a regular courtroom with a regular judge or jury. Then the arbitrator decides the outcome of that case. That decision is binding; the parties don’t have the ability to disagree with it. They have to submit that arbitration order to the court, but if the parties object to the arbitration order, they can file an objection within a limited period. It is very difficult to overcome an arbitration order.
How Does Mediation Work In Texas?
Mediation is right for most people, even if they don’t think so. When I’m preparing a client for mediation, I tell them not to think about their settlement range, but to keep an open mind. I don’t want them limiting where we can end up. For example, if they tell me they’ll settle for $100,000 and not a penny less, I’d say “You’re telling me if they offer you $99,000, you won’t take the deal?” They almost always will.
Almost every case is a good candidate for mediation and an attempt should be made to settle through mediation. The only cases that aren’t right for mediations are those where mediation has already failed. Go ahead and try the case if you can’t settle it.
The process of mediation is simple. Either the court orders you to mediation and appoints a mediator or the parties agree to mediation and retain a mediator. The mediator will usually ask for information about the case from each party. This information the mediator does not share with the other party, unless given permission to. From this, the mediator will get a basic understanding of the case.
Some mediations are very quick; it can take a couple of hours and you’re done. Other mediations last all day, and in some cases, last for multiple days. It depends on the size and complexity of the case.
On the day of mediation, the parties show up and usually go to separate rooms. The parties probably won’t see each other, they will only see the mediator. The mediator will usually start in the room with the party that filed the lawsuit—the plaintiff or petitioner, depending on the kind of case. The mediator will spend time gathering information and identifying the key issues. They will ask questions like, “What do you think needs to be resolved in this case?” and “How would you like to see the case settled?” Then the mediator will go to the other side and gather information, without making an offer.
After the information is gathered, the mediator will go back to the plaintiff or petitioner to get an offer. The offer is given to the other side, and they counteroffer. The process goes back and forth, until he or she can get either side close enough to settle, or until the mediator believes they’ve hit an impasse. If they can’t settle the case, the mediator will call the mediation.
If the parties come to a settlement, the mediator drafts up a mediated settlement agreement (MSA), laying out the basic terms and conditions of the settlement. Parties will also have to prepare other documents to formalize the settlement in the court, but once the MSA is signed, it is not revocable. When the party gets home with a little buyer’s remorse, it is nearly impossible to then decide they don’t want to settle the case; they can’t just back out. The court will enforce the agreement and will force that settlement on them.
Does Mediation Cost Less Than Going To Court?
In most cases, seeking mediation will greatly reduce your overall legal fees. Being able to settle disputes outside of court takes the financial burden associated with trial out of the equation. This prevents both parties from spending unnecessary time and money coming to an agreement.
Mediation law must be approached in a very particular manner. While still a legal process, mediation requires a great deal of thoughtful consideration. As a viable alternative to litigation, mediation enables both parties to come to a sustainable solution. This not only saves the stress of going through court proceedings, but allows you to obtain the best outcome available without spending a large sum of money.