The Mediation Process
Mediation is a process of assisted negotiations leading to agreement. It is an effective alternative to going to court where a judge makes the decision for you. Mediation is most effective when it is used early in the dispute before you incur the expenses of litigation.
The goal of mediation is for the parties to work out a solution they can live with and trust.
- It focuses on problem solving, not dredging up the past in the search of truth or imposing strict legal rules.
- The mediator is there to help the parties explore their choices and ultimately control the outcome and results, rather than having a Judge decide them.
- Mediation is a flexible, multi-stage process designed to get results.
Sessions:
The Mediation process will include private caucuses which provide each party an opportunity to meet privately with the Mediator to discuss the strengths and weaknesses of his or her position and consider new ideas for resolution and settlement.
If the Mediator believes it is helpful or if both parties request it, the Mediator may have joint sessions with both parties present. This might typically happen at the very beginning and at the end of the process.
It is typical for both parties to be represented by separate counsel who are allowed but not required to be present during the mediation sessions.
A Mediator’s Proposal:
In order to bridge the gap between the parties, the Mediator may suggest a settlement proposal. Unlike a proposal made by one of the parties, the Mediator’s Proposal is not usually rejected outright. The parties will typically caucus regarding the proposal, where they can respond to the Mediator and privately accept or reject the proposal.
A Mediator is not a judge and cannot make orders. The Mediator is neutral and may not offer legal advice to either party.
Written Settlement Agreement:
Ultimately, the Mediation will conclude when a settlement or impasse is reached. Impasse is declared when one or more parties or the mediator determines that continued negotiations would be ineffective at that time. If a settlement is reached, its terms will be put in a written Settlement Agreement and signed by the parties – typically after review by each party’s separate attorneys.
Signed Settlement Agreements are legally binding and enforceable.
Mediation is Confidential:
California law provides that all communications, negotiations, or settlement discussions by and between participants in the course of a mediation or a mediation consultation must remain confidential.
Confidentiality applies to anything that was said or any admission made for the purpose of, and in the course of, a mediation or mediation consultation. Similarly, any writing “that is prepared for the purpose of, in the course of, or pursuant to a mediation or mediation consultation” is protected.
The only thing in a Mediation that is not confidential is a written Settlement Agreement signed by the parties following mediation, which may be introduced and admitted into evidence if one or both sides seek to enforce it in court.
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