First let's discuss what mediation is, and what it is not. Mediation is a non-binding process during which two sides or parties to a lawsuit or dispute sit down with a neutral third party in an effort to resolve their dispute. A mediator is usually a lawyer or retired judge, and is often someone who is familiar with the type of dispute that the parties are attempting to resolve. Mediation is not a trial, and does not ordinarily take place in a courtroom.
Mediation occurs both formally and informally. In the context of a lawsuit for employment discrimination, personal injury or medical malpractice mediation tends to be somewhat more formal, and is typically held at a lawyer's office.
Mediation is becoming increasingly popular as a way to resolve or settle cases. In Federal Court, mediation is now mandatory in nearly every civil case. This means that whenever a lawsuit is filed for employment discrimination, violation of civil rights or the Family and Medical Leave Act, for example, mediation is mandatory relatively early on in the case. The Federal courts require this because lawsuits are both expensive and unpredictable and by forcing parties to consider the relative strengths and weaknesses of their cases early the courts believe more resolutions are facilitated.
So is mediation always effective? No, of course not. Sometimes the parties to a lawsuit simply see things differently. In many medical malpractice lawsuits, for example, the defendant doctor or hospital will simply not consent to settle and mediation is not worth the effort. Despite this, however, statistically speaking most cases do in fact end up resolving after mediation, so it is typically worth engaging in the process.
As we said, mediation is non-binding – as opposed to arbitration which is binding on the parties. This allows parties to engage in mediation with the understanding that if it doesn't work out the case can move forward.
If you have questions about mediation or a potential lawsuit, please feel free to give us a call.
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