Pursuing a case in court can be time consuming and expensive. When you want to avoid spending a lot of time, money, and effort settling a legal matter, you may not want to retain a lawyer or face appearing before a judge or jury.
Instead, you may get the legal outcome you want by going through the mediation process. Before you decide whether or not to mediate your case, you need to understand the full mediation definition as it might apply to your circumstances. Once you comprehend what is mediation, you can decide if you want to go through this simpler yet still legally binding conflict resolution available for some types of cases.
The most basic mediation definition involves the use of a mediator to resolve a case without the need for a judge or jury. Mediation itself is a type of ADR, or Alternative Dispute Resolution, utilized at all levels of the court system in the U.S.
It is essentially a negotiation process facilitated by a third-party neutral mediator. It does not seek or encompass a formal judgment and can be requested by either or both parties involved in the case.
Mediation may also be stipulated by legislation, contractual terms, or court mandates. It allows both parties involved in the case to end their conflict mutually through an agreeable solution.
The mediator in the case oversees the exchange of information between both parties as well as facilitates discussion and communication. Lawyers are not typically involved in the mediation process. Instead, most people represent themselves in the meetings.
When you want to save yourself time, money, and effort, you may like the idea of going through this kind of legal process to resolve your dispute. Before you request a mediator for your case, you should learn what actually goes on in the process and what you can expect to happen after the case is fully mediated and resolved.
The Process of Mediating a Case
When you want to learn more about what is mediation, it is important that you discover the actual steps involved in mediating a dispute or legal case. The processes may depend on the types of mediation being sought by the involved parties. Likewise, the meditation types available to you can depend on the nature of the dispute or case that you are pursuing.
Still, most meditation types of meetings begin with both parties formally introducing themselves to the person doing the mediating of the case. It generally is assumed that both parties already know each other. However, if anyone on either side is not formally known to someone on the other side, they can make introductions at this point of the process.
Next, the person who will mediate the case will inform both parties together what is expected of them during the proceedings. You will learn the rules by which you must abide as well as the possible outcomes available to you. If you have any questions about the process, you should ask them at this time before the proceedings get underway.
The mediator will then take a statement from each party involved in the dispute. The statements can be given in front of the other party or in private. This information allows the mediator to gain a better understanding of the case and what is at stake with the outcome.
Next, the third-party overseer will meet privately with each party. These meetings, called caucuses, allow the mediator to gain a better understanding of the dispute and also gain an objective viewpoint of the matter.
After the caucuses are over, the mediator will then start the negotiation process. You and the other party are expected to reach a mutually agreeable solution that works to the benefit of both of you.
If you reach such an agreement, the mediator will put it in writing for both of you. If not, you and the other party must consider another legal means by which to settle your case.
Types of Cases to Mediate
The court system allows for many types of mediation to take place outside of the courtroom. While this type of conflict resolution cannot be used to settle criminal cases, mediation can be used to settle matters that are relatively minor in nature yet still contentious with significant outcomes at stake.
For example, people who are getting divorced may want to mediate their cases rather than go before a family court. You may be able to mediate your divorce if you do not have significant marital assets at stake or the case does not involve offenses like domestic violence. Likewise, you could mediate your child custody case if you and your spouse can reach a fast and agreeable solution.
Along with divorce mediation, people may want to mediate cases that involve:
- neighbor conflicts
- labor union disputes
- family conflicts
- challenges with business partners, housing contracts, landlords, or management companies
Mediation is also a tactic commonly recommended in small claims or tenant-landlord cases as well as some family court cases. This method of resolving legal situations comes with numerous advantages that make it more appealing to people who want to avoid spending the time, money, and effort otherwise involved with going before a judge or jury.
Advantages of Mediation
Many people who use this ADR tactic do so because they want to utilize the advantages that come with having their cases mediated out of the courtroom. When you mediate your legal matter, for instance, you can get a faster and more affordable outcome than if you were to pursue a courtroom appearance or jury trial.
Mediation is less expensive and typically only takes a matter of weeks if not days to complete. Rather than endure weeks of court appearances, you can resolve your legal matter faster and with less money out of pocket with mediation.
Second, mediation of any kind including divorce mediation is confidential and legally binding. Regardless of the outcome you and the other party decide on, you get the full confidence in knowing that the agreement is fully enforceable by law and can only be altered by a court order or by going through the mediation process again.
Finally, this type of ADR allows you to have a direct say in the case’s outcome. You are not subject to the decision of a judge or jury. You are encouraged and invited to participate fully in the discussion, argue for yourself, and tell your side of the story to the mediator.
You do not even have to retain a lawyer to represent you or to speak on your behalf. If you want the luxury of having more control over the outcome of your case, you may decide to have it mediated rather than heard in court.
Still, you should be aware of what is expected of you after the mediator has guided you and the other party toward a mutually agreeable solution. This understanding can help you avoid violating that agreement and likewise know what to do if you want to have the written contract changed at any point in the future.
As mentioned, any agreement that you and the other party reach in the process will become legally binding. This agreement will be provided to you and the other person in writing. It will also be filed with the court and become an official court judgment.
As such, the agreement is fully enforceable by law and can require your arrest or punishment if you violate it. You will not have the discretion to do whatever you want regardless of what is written in the contract. You are bound by the terms stipulated in writing to you.
That is not to say; however, that you do not have the right to ask for the terms to be revisited at any time you choose. If you decide later that you do not agree with some or all of the stipulations in the agreement, you can request to go before the mediator again. If the other party does not agree to mediation, you may have to seek resolution through other means. Until then, you are still legally bound by the terms in the written contract.
You likewise must use other means available to you if you and the other party cannot reach a solution through this process. If despite the best efforts of the mediator as well as both parties you cannot reach an agreement, you may need to take your case before a judge or jury. In this instance, the mediator may agree that no solution can be obtained and your best option for closure would be to pursue the matter more fully through the court system.
Pursuing a case in court can be time consuming and expensive. You have to pay for filing fees and court costs as well as attorney retainer and hourly fees if you retain legal counsel.
When you want to reach a legal resolution to your legal matter without spending a lot of time, money, and effort, you may consider going through an arbitration process. An arbitration agreement is legally binding and may be appealed or altered if appropriate. You can decide if arbitration is right for your particular matter by learning the answer to what is arbitration and in what circumstances can you utilize this alternative to a court trial.
The most basic arbitration meaning can be explained by considering the difference between arbitration & mediation. Mediation is an ADR, or alternative dispute resolution, that typically does not require the presence or inclusion of arbitration lawyers.
Arbitration can include the use of arbitration lawyers, however. In fact, the arbitration process itself is not much different than a court trial. Instead of judge issuing a ruling, the decision will be rendered by an arbitrator or a panel of arbitrators.
When you consider arbitration vs mediation, you should realize that you have the right to build a case, present evidence, call witnesses, and use other tactics to garner favor with the arbitrators. Still, you should receive a binding arbitration decision faster than if you were to go through a court trial. The arbitration agreement is legally binding but may be subject to appeal if such action is allowed in your contract’s arbitration clause.
When you are trying to discern the difference between arbitration & mediation, you likewise may consider the fact that you may get more of a say in who decides your arbitration case. Unless otherwise stipulated in your arbitration clause, you and the other involved party may be permitted to stipulate who arbitrates the dispute. Your input may help you get a binding arbitration resolution that is more copacetic to your situation and more in line with what you are hoping to achieve by going through the arbitration process instead of a court trial.
When to Arbitrate a Dispute
Arbitration is available for many types of cases aside from those that involve felonies or some types of family court disputes. The most common civil and misdemeanor examples of cases that can be resolved through arbitration include:
- business or consumer disputes
- domain name challenges
- employment claims
- real estate or construction disputes
- tort or civil rights matters
- civil disputes involving less than $10,000 at stake
Anyone involved in such cases can request arbitration. However, according to the arbitration meaning in use today, both parties have to agree to this process and forgo their right to a court trial.
Moreover, many companies now stipulate that customers, clients, and vendors resolve disputes with them through arbitration rather than court trials. This stipulation is found in the fine print of many business or consumer contracts like those utilized for online shopping websites.
Still, as someone who may have the right to choose between arbitration vs mediation or a court trial, you may reach the best decision for your particular matter by contemplating whether or not you need legal counsel helping you with the process. Depending on what is at stake with your dispute or how familiar you are with what is arbitration in terms of legal resolutions, you may be more comfortable retaining a lawyer who understands the process and can help you reach the outcome you want.
When to Retain Legal Counsel
Unlike mediation, arbitration is a legal process in which the presence and use of lawyers is welcomed and even encouraged. The actual proceedings, which take place outside of a courtroom but still in a legal setting, are similar to a court trial in that you have the right to call witnesses, present testimony, and evidence, and use other tactics to bolster your arguments before the arbitrators.
With that, if you are not familiar with how the actual process takes place or you are not confident in your ability to represent yourself adequately, you may want to hire a lawyer to argue for you. In fact, in some misdemeanor examples, an attorney can be a valuable resource to helping you avoid expensive fines and other civil judgments. Even with the most extensive of research and your best efforts, you may not be able to replace the services that a skilled lawyer can provide to you.
You also should hire a lawyer to assist you if you want to appeal the decision of the arbitrator or panel of arbitrators. Depending on the stipulations in your contract, you may have the right to appeal the ruling in instances of:
- undue influence
- refusal to postpone hearing despite valid reasons
- misuse or overreaching of the arbitrator’s legal power
You must be able to present solid evidence of your reasons for wanting to appeal. You also may need to seek the agreement of the other party involved in the matter. If you cannot present the evidence or the other party does not agree to an appeal, you may have to seek resolution of your situation in court or through another method of ADR.
How to Hire a Lawyer
It is important that you retain a lawyer who is experienced and trained in handling arbitrated cases. If you are new to hiring attorneys or have never before sought out the counsel of a lawyer who practices in this specialty of law, you may wonder what steps to take to ensure you find one who can best represent your interests in the hearing.
As when hiring any kind of legal counsel, you want to put in your due research before putting a lawyer on retainer. You can start that research by contacting your state’s bar association. The association may have a list of attorneys who specialize in ADR and know the finer points of how to arbitrate a case like yours.
You can also find a lawyer who may be more than capable of handling your legal situation by asking friends or family members for advice. Friends and loved ones who have been involved in similar situations may be able to provide confident and reliable referrals to attorneys in your area. You may also be able to trust their opinions because they probably want the same outcome as you with your case.
Finally, you can discover what lawyers in your city or state handle arbitrated cases by going online. The Internet can provide an overview of such attorneys who are accepting clients and have the experience you are looking for in sound counsel. You also may be able to find online reviews posted by previous clients. Based on these reviews, you can decide what lawyers you want to meet with in person and which ones you might want to avoid contacting about your case.
When you want to avoid spending time, money, and effort that you cannot afford in court, you may get the legal outcome you want by having your case arbitrated instead of tried or mediated. Arbitration can be a faster and more satisfying process than going through a trial before a judge or jury.
Going to court can be an expensive undertaking for which you also lack time and energy. It can take weeks or months for a civil or misdemeanor case to be decided by a judge or jury. You may not want to have to put your life on hold to await a decision from the court.
When you want a faster and less expensive option to resolving your dispute, you may consider the benefits of going through arbitration. This process is legally binding and overseen by one or several arbitrators. The decision rendered at the proceeding’s conclusion can be final or subject to appeal depending on the stipulations in your contract.
Arbitration primarily exists to help people achieve legal outcomes without spending a lot of money on court costs, retainer fees, and other expenses. It essentially levels the playing field for everyone and gives people who otherwise would not have the means to go to court the opportunity to have their sides of the story heard in a legal setting.
Unlike mediation, however, this form of ADR allows both parties to retain lawyers who can argue for them before the panel. You may want to hire a lawyer if you cannot afford to pay a civil judgment or if you want to appeal the case’s decision.
You may have the right to appeal if you can prove that the proceedings were jeopardized by factors like fraud, misuse of power, undue influence, or corruption. Proving any of these circumstances can be challenging if you are representing yourself, however. You may bolster your argument and win the right to appeal by having a lawyer assist you with the case.
Having your case arbitrated can be an alternative when you cannot afford to go to court. You can get the legally binding resolution you want without spending hundreds or thousands of dollars on court costs, retainer fees, and other expenses.