Mediation

Mediation is an approach to resolving disputes that can be used during the course of litigation, or on its own as a complete remedy before a lawsuit is even filed. Mediation is an assisted settlement negotiation, assisted by a trained neutral party called the mediator. Some mediations can take only half a day, and some require a day or more.

Ms. Graham has mediated hundreds of cases through the courts and privately, in civil disputes including real estate matters, neighbor disputes, construction, contracts, personal injury, unlawful detainer and civil restraining orders. She trained directly with Peter Robinson at the Straus Institute for Dispute Resolution at Pepperdine University’s Caruso School of Law, where she became a true believer in the benefits of mediation.

Mediation is not the same as arbitration. Arbitration is more like a court trial.  Each side puts on its case, and an arbitrator makes a decision. Unlike trials, arbitration is private, discovery is limited and there is generally no right to appeal from an arbitration. In both trials and arbitration, a stranger—judge, jury or arbitrator—makes a decision for you. It is not a compromise.  There is a winner and a loser.  You try your best to present your case, but you may or may not win.  And you may find yourself stuck with a result you don’t like.  It might also happen that you win your case, but your opponent appeals. Or parties, and even counsel, can become so angry or upset as a result that emotional damage might last for years to come.

Mediation eliminates these problems. It is more cost effective, often lasting no more than one day. Mediation results in a settlement when the parties come to agreement. No one is forced to accept a result they don’t want. And there is finality. Once agreement is reached and reduced to writing, the parties are done. There are no appeals or further legal action.

The mediator first discusses with counsel the issues that will affect the mediation. What is the time frame? Do you want to submit briefs? Do you want to exchange briefs with the opposing party? Are there any issues an attorney may wish to discuss with the mediator privately before the mediation begins?

Mediations are confidential, to a greater extent than the limited evidentiary rules governing settlement negotiations and settlement conferences in general. You are not allowed to talk about what happened in your mediation in a courtroom. You cannot have the mediator testify about what happened in mediation. Also, anything you discuss with the mediator can be kept confidential from the other side. The reason for this rule is that it allows each party to share and explore openly with the mediator the issues surrounding the dispute and possible resolution. Confidentiality has become an important hallmark of mediation, because the process works.

Mediation often takes place with each “side” in a separate room, either real or virtual. The mediator takes time to talk with each side about the merits of the case, the underlying issues, and what it will take to solve the problem. Each case is unique. The personalities of the participants and the nature of the dispute dictate different approaches from case to case. By talking things out, and seeking common ground or compromise with the help of a mediator, parties to a mediation find a way to resolve their dispute. At the end of the process, when the parties come to agreement, an agreement is signed on the spot to memorialize the settlement. This is a necessary part of the mediation process as a proper written settlement agreement ensures the agreement is enforceable and not subject to mediation confidentiality. And because it is a process that involves compromise and cooperation, the disputants often walk out of a successful mediation feeling relieved and revitalized.