Mediation

Background

Mediation, as a means of resolving litigated claims, may be a relatively new concept to many unfamiliar with alternative dispute resolution. However, mediation has been around for over 3,000 years with documented evidence of its use to resolve societal disputes in the Old Testament, beginning in the 12th century B.C. in China, throughout the Roman era, and can be found in the historical records of most cultures and civilizations since then. Here, in the United States, mediation has been used even prior to the formation of the Republic, but it has become an increasingly utilized alternative to resolution by trial over the past 20 to 30 years. With a decrease in courtroom accessibility, mediation has become a thriving industry in its own right, with thousands of persons declaring themselves to be a "mediator" — some without adequate training or experience — while others are excellent at what they do.

A mediator is an individual who must be neutral, be unbiased toward any of the participants, have no financial stake or interest in the outcome, and be willing help facilitate resolution of the dispute through effective and productive negotiation. The mediator has no ability to impose any ruling, make any evidentiary decisions or decide any contested issue. If the parties want someone to decide the case for them, then an arbitrator or judge is the answer.

Currently, there are no education, experience or licensing requirements for a mediator in California. Certifications can be bestowed upon individuals based on his or her membership in particular private organizations, but the state of California does not currently recognize certifications for mediators. That makes locating the right mediator that much more important. Finding the appropriate mediator is not just a search for the person with the most qualifications and experience, but is a search for a person who can communicate well with the participants and help achieve the ultimate goal. The right mediator is someone who appears trustworthy and respected; someone who will work hard for the result, not just to earn a fee.

The mediation itself is similarly unregulated, leaving it up to the participants to determine when, where and for how long the mediation will last. Costs and fees are determined by market-based factors. The participants generally come to an agreement as to the terms of the meditation and then proceed. It is a good practice for such terms to be in writing, and for that reason Wilton Law & Mediation has a Mediation Policies Statement, which sets forth our applicable policies and procedures.

Once the mediation begins, there are no rules or regulations which establish procedure to follow at the mediation. There are, however, specific statutes that limit what the participants can be compelled to disclose later about what happened in connection with the mediation. -In California, the mediation process is protected by evidentiary rules which characterize most communication in and surrounding mediation to be "confidential" and, therefore, inadmissible in court. See, Evidence Code §§ 1115-1128. The purpose is to promote candid communication among the participants without the concern of making inconsistent or even detrimental statements.

Benefits Of Mediation

The better question might be, "Why not mediate?" The number of civil disputes has not diminished, yet the means of resolving such disputes remain the same. When the parties cannot otherwise agree, resolution comes in one of three ways: Either the parties proceed to arbitration and have a neutral arbitrator determine the outcome, wait for trial and have a judge or jury decide the matter or settle with the assistance of a trained mediator. The only option where the participants are in total control is mediation.

As everyone is aware, waiting for a judge or jury to resolve the claim will take even more time, as the availability of courtrooms to handle such disputes shrinks. Civil litigation will take longer to reach trial to the detriment of all parties due to increased expenses and witness recollection problems. Arbitration can be prohibitively expensive, and without the benefit of an agreement to arbitrate to clarify procedural rules, evidentiary admissibility and cost allocation, arbitration is often not a feasible alternative. Thus, mediation will be and remains the most viable, low-cost method of resolving cases and pre litigation claims.

Mediation can be beneficial so long as the parties are willing to participate in good faith. That is the only true requirement. Where persons or parties are forced to attend, such as court-ordered mediation, the success rate is reduced. Of course, since the Superior Courts are less likely to be issuing orders for mediation in light of the elimination of many Case Management Conferences, we expect an increase in the willingness to participate in the mediation process.

Frequently, people engage in mediation believing there is no chance of success, only to find the matter resolved by the end of the session. Other times, mediation can help to clarify each party's strengths and weaknesses, which can help to determine the future direction of the case. Even where settlement is not currently possible, much can be learned at the mediation to help guide the participants. A significant number of cases are settled after the initial mediation session.

The benefits of mediator-supervised communication cannot be overstated. Every case may be assisted in some way by a meaningful mediation of some or all issues.

To reserve a date without obligation, call 818-906-3500 today or contact us as soon as possible. Remember, at Wilton Law & Mediation, "Our only goal is to resolve disputes."