EDMOND — EDITOR’S NOTE: This is a weekly series of columns written by attorneys at Lester, Loving & Davies law firm in Edmond.
Q: Is mediation a good alternative to a lawsuit?
A: Mediation is a structured settlement process to help people resolve disputes by agreement. In many cases, mediation is a good alternative to filing a lawsuit. At other times, mediation is used after litigation has been filed. Although mediation during litigation is usually voluntary, sometimes courts order parties to mediate.
Parties or their attorneys often attempt to settle a dispute before filing suit. If the attorneys and the parties can’t agree to settlement terms on their own, but want to avoid the expense of a lawsuit, they can hire a mediator to help find resolution. If mediation is not successful, litigation can be filed.
A mediator is a neutral party who discusses the dispute with the parties and tries to help them each see the strengths and weaknesses of their respective positions. Usually, mediation starts with all parties meeting together so that each side can tell its story and attempt to frame the issues. The mediator then spends time going from one party to the other in an attempt to reach a settlement. The mediator does not decide who is right or wrong, or how the dispute should be resolved, but helps the parties decide how to settle it. What each party tells the mediator is confidential unless the party authorizes the mediator to disclose the statement.
Benefits of mediation can be tremendous. Mediation is usually less traumatic than going to court because it is informal and private. It is designed to put the parties at ease. If the parties do not reach a resolution in mediation, their discussions are confidential and cannot be used in court. Mediation usually costs substantially less than litigation. Normally, parties to a mediation have attorneys with them, to aid in negotiation, advise them of their rights, and the strengths and weaknesses of each party’s position. Nevertheless, mediation aids in avoiding long court delays and mounting attorney fees.
The principal value to mediation, though, is that the parties — not a judge — control the result. Although some mediation, such as mediation in divorce cases, requires court approval, mediation is often a party’s last opportunity to chart his own course. This is valuable even if that course does not land him exactly where he wants. Because he has negotiated the course, the place of landing is, if not optimal to him, at least his choice. Happy sailing.