WHAT HAPPENS AT MEDIATION?
At mediation, parties in a dispute with their counsel if any, work confidentially with a neutral mediator who assists each to work to determine creative solutions to settle issues amicably and peacefully after discussing concerns and interests. During parties voluntarily engage in informal collaborations to find mutually fitting resolution after to achieve realistic solutions.
IS THE MEDIATION CONFIDENTIAL?
Yes, the California Evidence Code or California law provides all communications, negotiations, or settlement discussions in the course of a Mediation consultation are confidential and are not admissible or subject to discovery in court.
WHEN IS BEST TIME TO MEDIATE?
Mediation can occur at any time, whether or not parties are already the subject of litigation, before suit is filed, during discovery, even after trial since the court has authority to require parties to mediate. Resolving a dispute early can be very cost-effective. If parties foresee a problem, they may use mediation to agree first as to how the problem will be handled.
IS MEDIATION BINDING?
Yes, most always settlement agreements prepared and signed at mediation are legally binding because parties agree and consent to make it binding. The agreement is documented as an exception to the confidentially clause making it actionable in court if a party fails to perform.
WHO PAYS FOR MEDIATION?
Typically, costs will be split equally among the parties, unless otherwise agreed, or if applicable, paid directly to the responsible law firm as directed and agreed.
DOES ARBITRATION DIFFER FROM MEDIATION? Arbitrations are mostly more formal and expensive than mediation as parties and witnesses swear in, testify, and respond to questions while the session is recorded. Mediation is less formal and unlike arbitration or court where a judge or panel makes a final ruling, deems a winner and a loser with less flexibility to solve specific concerns or approach creatively. In mediation, the parties determine what issues and solutions are acceptable, not the mediator who neutrally facilitates peaceful exchanges and negotiations.
WHAT ISSUES ARE APPROPRIATE TO MEDIATE?
Almost all noncriminal disputes parties have been unable to remedy can be resolved in mediation.
DO I NEED A LAWYER?
The mediator does not give legal advice. Lawyers are welcome, but not necessary. Attorneys help by providing their clients with the law pertaining to them. Often parties are represented since disputes involve legal rights. Parties are encouraged to consult with their own attorneys. If you want legal advice, feel safer or stronger with counsel, bring an attorney. If you need one, the San Diego County Bar Association Lawyer Referral can connect you.
HOW LONG IS MEDIATION?
The participants predetermine time and costs for the process. The mediation lasts as long as parties agree and that depends on the number of issues, distance apart, parties willingness to work it out, circumstances, temperaments, adequacy of information, capacities to articulate interests, and the speeds people work for each side. Mediation can take one hour, many hours, one meeting or several in rare cases. A typical small party mediation will last 3 to 4 hours. Larger party complex cases can take a full day.