Do I Need a Lawyer if I’m Ordered to Mediation by a Judge?
I have been ordered to mediation by a judge. Do I need a lawyer?
Mediation is a negotiation process where disputing parties are assisted by a neutral third-party—a mediator. Mediators are trained to facilitate discussions and help parties work out their own solution. The parties may or may not reach a settlement, but it is the parties who determine the outcome, not the mediator. One advantage of mediation is that innovative solutions to a problem may be explored. You can create your own solutions rather than have a judge, jury or arbitrator impose a decision on you. Thus, you maintain the power to decide rather than have someone else decide for you. Most civil disputes can be mediated, including those involving contracts, personal injury, Workers’ Compensation and divorce. For example, a divorcing couple might mediate to work out a mutually agreeable child custody agreement, or estranged business partners might choose mediation to work out an agreement to divide their business. A mediator has no authority to render a decision. It’s up to the parties themselves — with the mediator’s help — to work toward their own agreement. An arbitrator, on the other hand, conducts a contested hearing between the parties and then, acting as a judge, renders a legally binding decision. Arbitration resembles a court proceeding: Each side calls witnesses, presents evidence, and makes arguments. Arbitration has many critics. Big businesses are criticized for requiring customers or employees to arbitrate disputes with them, rather than taking those disputes to court. Usually, these arbitrations are conducted under rules that favor businesses. While mediation is not as formal as going to court, the process is more structured than people imagine. A typical mediation involves distinct stages:
Mediator’s Opening Statement: The mediator introduces everyone, explains the goals and rules of the mediation, and encourages everyone to work cooperatively toward a settlement.
Disputants’ Opening Statements: Attorneys for the parties describe what the dispute is about and present some general ideas about resolving it.
Joint Discussion: The mediator may try to get the parties, through their attorneys, to talk directly about what was said in the opening statements. This is the time to determine what issues need to be addressed.
Private Caucuses: Private caucuses with the mediator are chances for each side to meet privately with the mediator to discuss the strengths and weaknesses of his or her position and suggest new ideas for settlement. The mediator will caucus with each side many times, as needed. These meetings are considered the guts of mediation.
Closing: If an agreement has been reached, the mediator will put the main provisions in writing. If no agreement was reached, the mediator will review whatever progress has been made and advise the parties of their options, such as meeting again later, going to arbitration, or going to court. I would advise everyone to speak with an experienced attorney prior to attending mediation.
At Nelson, Bryan and Cross, our attorneys have participated in over 1000 mediations on behalf of our clients.