Mediation is a form of ADR where a neutral third party assists the parties to try and reach a mutually agreeable resolution.
In mediation, the parties retain a high degree of control over proceedings. They agree on the mediator—often someone with experience relevant to the subject of the dispute—and ultimately decide the outcome. The mediator doesn't suggest a settlement or adjudicate the matter like in arbitration. Instead, they aid discussions between the parties, encouraging them to find common ground.
Mediation can be ideal for cases where the parties want to maintain their relationship or where negotiations have become too emotional. A mediator can impartially assist the parties toward productive discussions.
Mediation may not be suitable where a party refuses to compromise or is reluctant to take part in the process. Given the informal nature of mediation, it may also not be appropriate where there is a power imbalance between the parties, and the one with more bargaining power seeks to take advantage of the other.
Mediation is used in all areas of law, but it is used to resolve disputes in our practice areas, including:
- Real estate
Many people wonder whether they need an attorney if there is a mediator. In most cases, an attorney is optional but is almost always beneficial. Here's an overview of a mediator's role versus an attorney's role in mediation.
- The mediator functions as a neutral facilitator.
- The mediator facilitates communication between parties.
- The mediator helps parties identify common issues and develop possible solutions
- The mediator helps parties work through possible solutions to come to an agreement.
- The mediator does not make decisions or give advice.
- The mediator does not lead either party in any specific direction.
- The mediator can choose to hold sessions together or separate the parties.
- The mediator controls how the mediation proceeds.
- The lawyer helps prepare the client for mediation by coming up with key points or issues to address and making sure nothing is left out or overlooked.
- The lawyer guides their client with the intention to work toward a resolution so long as it adequately aligns with the client's interests.
- The lawyer guides the client on risks and gains in any proposals formulated during mediation.
- The lawyer informs the mediator of any special needs the client may need.
- The lawyer ensures the client is not pressured into agreeing to anything contrary to their interests.
- The lawyer will help the client review any agreement originating from the mediation.
- If the parties settle on an agreement, the lawyer ensures the agreement is executed.
Mediation is a great way to avoid litigation and resolve legal issues. With the guidance and advocacy of an attorney, it can be effective. At Harrah Law, our attorneys counsel clients who agree to try mediation as an option to address their legal dispute. Please reach out to us to learn whether mediation might be a viable option for you.
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