Whether it’s a dispute with your landlord, a business deal gone awry, going through a divorce or, perhaps, engaging in a custody battle, don’t automatically assume that the only way to get your case resolved is to go to court. Quite to the contrary, many civil cases are much more easily handled through the mediation process.
Mediation is an informal, voluntary and confidential process where a neutral person, the mediator, acts to encourage and facilitate resolution of a case without prescribing what that resolution should be. In contrast to a judge who decides how the dispute will be resolved, the mediator helps both parties reach their own mutually acceptable or voluntary agreement.
It’s become, at least in my experience, the policy and practice of many courts, prior to getting into discovery and actual legal hearings, to suggest mediation to the parties as a way to settle the case. I’ve found that in a high percentage of cases – perhaps 95% of the time - mediation really works effectively.
For instance, right now I’m working on a multiple party case where we have 12 attorneys involved. Mediation gets everybody to sit down in the same area to sit down in a little less adversarial atmosphere, talk about the facts and have a third party, the mediator, to point out when one side has miscalculated its position. The mediator will let them know that their argument probably won’t be a winner in court and help them reach a resolution without having to go to court.
Mediators are often retired judges who have seen just about every type of case that comes through the court system. There are private bar attorneys who also handle mediation. They usually focus on the types of cases they’ve practiced in before and their high expertise is very valuable in helping bring the two sides together for resolution. They know what they’re doing and have an unbiased look at the facts being examined.
The advantages of mediation are many and include:
- Time – Invariably, it takes less time to mediate a dispute than it does to try a case. And, as we all know, time is money. With the high cost of legal fees, mediation is much easier on the pocketbook.
- Confidentiality – All communications in mediation are confidential and neither the mediator’s work product nor any statements made in a mediation hearing can be later disclosed.
- Control – The mediation process gives all parties the chance to resolve their own dispute rather than leave it up to a judge.
- Satisfaction – Numerous studies have shown that the mediation process usually results in a high degree of satisfaction for those involved.
- Durability – Studies have also shown that people are more likely to accept and abide by their own decisions rather than decisions imposed on them by others
- Binding Effect – Once the judge approves and signs the mediation agreement, it may become a judgment or court order with the same legal effect as if the judge decided the case
- Final Effect – Unlike court-ordered judgments, these agreements can’t be appealed.
Finding a mediator is a relatively simple process, too. Many judges will have a default mediator that he or she will recommend. The court systems also have a list of people who handle mediation including former judges and private bar attorneys.
To find a mediator, contact your local municipality to see their list of recommended mediators. It may save you unnecessary courtroom headaches and a nice sum of money as well.
About Attorney Mark Powers
Attorney Mark Powers is a partner at the criminal defense law firm of Huppertz & Powers, S.C. in Waukesha. Previously, Powers served as an Assistant District Attorney with the Waukesha County District Attorney's office as well as a municipal judge in North Prairie. He currently focuses in the area of criminal defense, and has handled many cases involving operating a motor vehicle while intoxicated, domestic disputes, and drug offenses.
Powers attended Valparaiso University School of Law, where he received his Juris Doctorate. Prior to law school, Mark attended the University of Wisconsin, Lacrosse where he received his bachelor of science in Political Science.