Mediation is a form of alternative dispute resolution (ADR). Alternative dispute resolution (ADR) is a term for ways to legal settle disputes out of court. Arbitration and mediation are the two most common forms of ADR. When settling a personal injury case, you and your attorney may get asked to participate in a mediation to try and settle before your claim goes to trial. Choosing to take part in a mediation can have many benefits, but also a few disadvantages. In this blog, we go over both sides of the coin.
Mediation differs from arbitration. In arbitration, the arbitrator – who makes the final decision on the matter — acts as a judge; but, in an out-of-court setting. In mediation, a trained neutral person — the mediator — helps people in a dispute communicate with one another and reach agreement. The mediator’s role is to act as a neutral third party who facilitates discussions between the parties. Mediators don’t make decisions for the parties to the mediation; they do not provide legal advice or recommend the terms of an agreement.
In a typical mediation, parties explain their side of the story, the issues are identified, and options are discussed, as are solutions. Participants in mediation may choose to sign a written agreement which is enforceable as a contract. If an agreement is not reached, the claim can still be handled by the court or through arbitration.
Many types of legal matters can be handled through mediation. Medical malpractice lawsuits, business disputes, family conflicts, for example, can all be resolved in mediation. The Maryland judiciary encourages the use of mediation. Under the leadership of the Honorable Robert M. Bell, Chief Judge of the Maryland Court of Appeals, Maryland’s Mediation and Conflict Resolution Office (MACRO) serves as an alternative dispute resolution (ADR) resource for the state. MACRO promotes the appropriate use of ADR in every field.
The Pros of Settling Through Mediation
The advantages of mediation include:
- Mediation can save time and money. The mediation process generally takes much less time than moving a case through the court system. While the court might take a year before a trial date is set, mediation can achieve a resolution in a matter of hours. This can result in significant savings of time and expense – positively affecting the client’s bottom line recovery.
- Mediation can help protect privacy because mediation is a confidential process. While court hearings are public, mediation is confidential. No one but the parties to the dispute and the mediator know what happened. Confidentiality in mediation is regarded as so important that mediators can not be compelled to testify in court.
- Mediation increases the control the parties have over the resolution. Agreements made in mediation come from the participants, not the mediator. In an arbitration, the arbitrator decides the matter. In a court case, the parties obtain a resolution, but control resides with the judge or jury.
- Mediation is a collaboration. Parties to a mediation work together toward a resolution.
- Compliance with the mediated agreement is high because the result is attained by the parties is mutually agreeable.
The Cons of Settling Through Mediation
The disadvantages of mediation include:
- Mediation does not always result in a settlement agreement. Parties might spend their time and money in mediation only to find that they must still go to court on the matters in dispute.
- Mediation lacks the procedural and constitutional protections guaranteed by the federal and state courts. Mediation between parties, where there is an equal distribution of resources, might result in a lopsided settlement as the less-well positioned party could be at a disadvantage.
- Legal precedent cannot be set in mediation. Mediation is therefore not beneficial for certain types of cases, such as discrimination, where there is an expectation of bringing the case with the hope of setting a legal precedent that will have a broad social impact.
- Mediation has no formal discovery process. If one of the parties to a dispute needs information from the other party, unlike the discovery process undertaken through the court system, there is no way to compel disclosure of such information. The party seeking disclosure must rely instead on the other party’s good faith, which may or may not be enough.
Baltimore, Maryland-based Belsky & Horowitz are experienced in mediation and arbitration and have been fighting for their clients who are the victims of negligence for many years. Call us at 410-234-0100 or email us for a free consultation and let us help you.