Meditations on mediation

You didn’t come to the decision to file a lawsuit lightly. Or, you attempted to resolve your dispute with a disgruntled plaintiff soon after a suit was filed. Those efforts were unsuccessful. Now your attorney tells you that you have to go to mediation. What?

Mediation is a form of alternative dispute resolution in which the parties attempt to negotiate a settlement through the use of a neutral third party. Unlike in an arbitration or at trial, the mediator has no authority to issue any decisions to resolve the case.

But, if you weren’t able to resolve your differences before, why go to mediation now?

In some cases, mediation is mandatory, such as custody and placement disputes in Milwaukee County. Many times, mediation is ordered by the judge. Or, your attorney may suggest going to mediation.

Whether you opt into mediation or are ordered, clients often have many questions.

Who are the mediators? Typically, mediators are retired judges, or attorneys, who have expertise and training in a particular area of law. They are completely neutral, and do not advocate on behalf of any party.

Who pays for mediation? Generally the parties split the mediator’s hourly rate.

What happens in mediation? Usually, the parties gather at the same office, in separate rooms. The parties present a summary of their position and the evidence in their favor privately to the mediator. The mediator then travels between the parties and attempts to negotiate a settlement by facilitating a discussion about the strengths and weaknesses of each position and suggesting compromises.

How long does mediation take? Sometimes, a few hours. Other times, mediation can occur over a number of days or weeks.

Will the judge know what we talked about in mediation? All mediation negotiations are confidential; anything that is discussed in mediation cannot be later used at trial.

Why go to mediation? There are two main benefits: 1) The costs involved in mediation are significantly less than trial; and 2) You and the other party control the outcome in mediation – in litigation, all of the decisions are made by the judge or jury.

Many cases settle at mediation, saving the parties time, money, and the uncertainty of trial.

Even if mediation is unsuccessful, it provides an opportunity to understand better the opposing party’s position and ultimate goals of litigation. It is never a waste to explore meaningful options to settle your case.