Mediation is a form of negotiation which uses a neutral mediator to assist parties to find a mutually
acceptable solution to their problem.
Mediation vs. Trial
Mediation can be used to resolve disputes in a wide variety of situations. One situation involves the parties to a civil court case. In this case the parties work with a mediator to negotiate a
mutually acceptable solution to the issues in their court case. If the parties are unable to negotiate
a settlement of the issues in their court case, these issues will be resolved by a judge after a trial.
In order to better understand mediation, one can compare what happens in mediation to what
happens at trial.
Winning and Losing
A ultimate purpose of a trial is not solely to discover the truth. It may be beyond the ability of the court or the parties themselves to determine what the truth may be in a given situation. The ultimate purpose of a trial is to weigh the evidence presented to determine if the evidence is sufficient to meet a legal standard which the state legislature has established.
In a case where a party is asking the court to do something for that party, there are typically certain things that the party has to prove in order to permit a court to do what a party wants the court to do.
In a civil case, typically, the question before the court is whether, based upon the evidence properly before the court, it is more likely than not that a party is entitled to the relief that the party is seeking.
“Properly before the court” means evidence that can be considered by the court based upon rules of evidence established by the state legislature.
“More likely than not” means a party can prevail if the weight of the evidence favoring that party is at least 51%. In a close case it can be very hard to determine whether or not the evidence presented has met the 51% test.
In contrast, in a mediation, the rules of evidence do not apply. The parties are free to evaluate the evidence however the parties may choose to do so. The parties are free to set their own standards for making any decision they may choose to make.
At trial, the question is whether the court, based upon the law and the evidence before the court, will or will not do what a party is asking the court to do. In mediation, the question is whether or not the parties can agree upon how best to resolve the dispute.
At the end of a trial, a judge decides what should be done.
At the end of a mediation, the parties decide what should be done. If the parties cannot agree on what should be done, then eventually the issues in the case will be presented to a judge to decide.
In a trial, the vast majority of the time is spent presenting evidence to the court, discussing what evidence may or may not be considered by the court or discussing the significance of the evidence presented.
When the trial has concluded, the court makes a decision. After the decision is made, the parties leave the court room and another matter is called before the court.
In a mediation, the vast majority of the time is spent discussing what should be done to solve the parties’ problem. The parties and the mediator typically discuss the merits of each solution in terms of its impact upon the parties and other persons, like minor children, who might be affected by the proposed solution.
When the mediation has concluded, the parties decide what is to happen. If the parties reach an agreement, then that agreement resolves the matter. If the parties are unable to reach an agreement at that time or at any time prior to the day and time set for trial, then the matter goes to trial for a judge to decide what to do.
When to Consider Mediation
Reasonable people may disagree, but in my opinion in a court case, especially a domestic relations case, there are two occasions during the proceeding when mediation is likely to be useful.
At the Beginning
At the beginning of the case, circumstances may be the most difficult and chaotic. Mediation at this time in the case may assist in reaching an agreement on the ground rules that will apply during the course of the case, on the obtaining of documents or any other information from the other party (a process called discovery), and on any decisions that cannot wait until trial, but need to be made prior to trial or any court proceeding prior to trial.
After Discovery is Completed and Initial Settlement Negotiations have Begun
Another good time for mediation is after each party has acquired information sufficient to permit a party to properly evaluate a party’s situation in the case and after the parties have had a chance to discuss the issues in the case. At this point the parties should know what the unresolved issues are and what the evidence in the case may be. At this time the parties should be able to negotiate knowing what the law and the evidence in the case may be and what is and is not in dispute.
The Use of Attorneys
A mediator is neutral. A mediator cannot provide legal advise to either party. A mediator cannot tell a party what a party should or should not do.
In contrast, an attorney hired to represent a party is not neutral. An attorney hired to represent a party has a fiduciary obligation to look after the interests of that party.
A mediator is not a substitute for an attorney.
Each party to a mediation should have access to legal counsel.
Advantages of Mediation
A mediated negotiation has the following benefits over a negotiation without a mediator:
A mediator works to keep the negotiation focused and on task. Parties negotiating on their own may find this difficult to do. Different goals and agendas can make this difficult for the parties to do on their own.
A mediator may be able to spot areas of agreement or common interests. The parties on their own may be unable to see or unwilling to admit that they exist.
Conflict has a way of narrowing the discussion into why the parties should or should not do something. A mediator, as a neutral party, may be able to encourage the parties to consider settlement options that are not on the table.
I have been litigating and negotiating court cases as an Oregon attorney for over 35 years. I have also had a variety of non-legal experiences. Taken together, I believe these experiences are helpful in understanding the situations you may be facing and the options that may be available to resolve your problems.
One of my most valuable experiences is as an attorney representing parties in mediation.
I have been where you are now. I personally know how beneficial effective mediation can be.
I am also aware of the of the other problems associated with litigation. The expense, the scheduling issues, the stress and the uncertainty.
In developing a mediation program for you, I try to address these issues.
As a litigator I know the value of preparation. Someone once said that it is amazing how much “effort” it takes to make an “effortless” presentation. Mediation is the same way.
In order to properly respond to what happens in mediation, I need to know what is going on and why. It is best to learn as much as can be learned before the mediation begins.
The benefit of mediation is the ability to spend most of our time together working on solutions to your issues. This can only happen if I know as much as possible about what is going on BEFORE we get together for mediation. In this way I can spend less time learning and more time negotiating.
Humility may be an unexpected quality for a good mediator. In fact, it is an essential quality. I have never met you. I do not know who you are. I know only what you tell me and what I learn from working with you. You are different from the other clients and litigants that I have known. Humility means accepting the need to learn about you and your situation. In that way I can help you develop a solution that works for everyone involved.
Nothing happens in a mediation unless everyone agrees. This is a situation that is not new to me. A trial involves persuading a judge or jury. Negotiation involves persuading a client to make an offer and persuading opposing counsel and, indirectly, opposing counsel’s client to accept that offer.
I am not the judge. You are the judge. It is my job to help you explore proposals and options that may resolve your issues. We need to find solutions to which you both can say, “yes.”
Sometime during the mediation we will meet separately. During this time you can speak confidentially with me. Be honest. Lying to a mediator under these circumstances just doesn’t make sense. I need to know what you are and are not willing to do and why. The why is really important.
Please note that anything said or done by the parties during the mediation when negotiating is confidential. It cannot be introduced into evidence in a subsequent court proceeding. This is intended to give you the freedom to be honest with me and the other party.
If I ask you to provide me with information prior to the mediation, please provide me the information as quickly as possible. If I ask you to provide it, there is a reason. Help me out and cooperate.
Work with an Attorney
Consult an attorney before we begin mediation. Have an attorney representing you at the
mediation. I am a neutral. I do not work for you or the other party. I can ask questions, but I
cannot make recommendations. I cannot advise you as to what you should or should not do.
Your attorney can do this. Working with an attorney is extremely important. Having an attorney
to assist you makes sure that you will have the help that I cannot provide.