Frequently Asked Questions About Mediation
Q: What is mediation?
A: In mediation, a neutral assists parties in reaching a negotiated resolution of a dispute. Mediation allows each side to communicate their views of the conflict to the other side, and to gain a better understanding of how the other side views the problem. That allows the parties themselves to design a solution to the dispute that may be better for both sides than the costs and risks of other methods of conflict resolution, particularly litigation. Mediation is a confidential process. Admissions or promises made in the course of mediation cannot be used in court against the party making them, in the event the case does not settle.
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Q: How is mediation different from arbitration?
A: While both are forms of “Alternative Dispute Resolution,” arbitration is more like a scaled-down trial. Both parties plead their case and the outcome is decided by an “expert” who hands down a decision. Like a trial, an arbitration leaves no room for a conversation between the parties.
Q: If I mediate, would I have to compromise?
A: Parties in mediation only make compromises which seem better to both of them than the risks and costs if they don’t come to an agreement. The outcome is always voluntary. The idea of mediation is to explore whether there is a way for both parties to gain what is most important to them – and to do this without the stress and expense of continued conflict or going to trial.
Q: Would a mediator give me advice and make suggestions about what I should do?
A: Better than that, the mediator will ask powerful questions that help you examine your position and clarify the needs and wants that underlie your position. Mediation is based on the understanding that you know better than any expert or advisor what is really important to you. The mediator encourages parties to communicate respectfully and to use their own resources to craft a solution.
Q: What kinds of disputes can be handled through mediation?
A: Just about any you can think of – merchant/customer, neighbors, co-workers, landlord/tenant, business associates, co-parents (separating or divorced couples who share childrearing), family difficulties, elder issues.
Q: When is the best time to mediate?
A: Parties in conflict can choose mediation any time they deem it appropriate. It is sometimes advisable to call in a mediator before filing a lawsuit, and it is also common to try mediation after the parties have exchanged pleadings and some discovery in litigation.
Q: Are mediations arranged through the courts?
A: Not necessarily. In fact, the Los Angeles County Superior Court system in 2013 abolished its own mediation panels in most cases. Generally judges can only suggest mediation, and parties need to arrange for mediation outside of court. The SCMA developed a Select a Mediator directory to assist parties in finding appropriate mediators for their disputes. The directory allows parties to search for mediators by geographical area, by area of law, and by price range, and provides detailed information about the backgrounds of the listed mediators. Mediators may be former judges, or attorneys, or come from another professional background. In addition, all of the mediators who appear on the SCMA directory have received specific training in mediation and negotiation techniques. In choosing a mediator, parties should consider what kind of mediator background is most suitable for their dispute, and should also ask prospective mediators about their preferred mediation style.