Nearly 90% of civil cases will settle, with a high percentage of those settling through mediation. Thus, one might ask: What is mediation, and what is the mediator’s role in the process? Mediation is either voluntary or court-ordered. Even where court-ordered, however, the process is still voluntary in that the parties, while required to appear and participate, are not required to come to a resolution involuntarily.
In that sense, all mediation is “voluntary.” Mediation is also a confidential process. Much like the old saying “what happens in Vegas stays in Vegas,” whatever happens during your mediation stays in mediation; neither the parties, their attorneys, nor the mediator can discuss the mediation with outside parties. Finally, the mediator, while typically an experienced attorney, is not counsel for any party to the mediation. Rather, the mediator is a fair and impartial neutral whose job is to use his or her knowledge and experience to help the parties reach a resolution and to end their case without the expense and unknowns related to continued litigation and, ultimately, a trial. Though not all are successful, most mediations are a success and end the parties’ dispute on the parties’ own terms.
Many mediation conferences take place virtually, typically over Zoom, or in a hybrid format in which some parties appear in person, and others appear electronically. The parties to the mediation sometimes cannot, and are not required to, reach an agreement. In that case, the mediation is concluded, the mediator notifies the court of the impasse, and the parties proceed with the litigation in court. In the majority of cases, however, an agreement is reached, whereupon the mediator prepares a written mediation settlement agreement which the parties sign, the mediator then notifies the court of the settlement, and the parties’ case is over so long as they adhere to the mediated settlement agreement. In sum, mediation is an effective, convenient, and cost and time-saving means to resolve a dispute either before or during litigation.