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Mediation and Other Forms of Settlement
What is Mediation?
Mediation Is an Alternative to Trial
Mediation is a settlement process. It can help you resolve issues in your court case and may result in a settlement or agreement. Mediation can be used instead of going to court and having a judge make decisions.
In mediation both parties meet with a neutral mediator. The mediator will help you find solutions to your issues by helping you communicate and work toward settlement, if possible. The goal of mediation is to reach a fair agreement that both parties accept.
Mediation Can Be Voluntary or Court-Ordered
Mediation can be voluntary or the court can order you to attend mediation. Mediation works best when it's voluntary and both parties think it will help them resolve their disputes. But mediation can still work well when the court orders it.
How Mediation Works
Mediation can resolve the issues that you and the other party don’t agree on. For example, in a divorce case, mediation can help decide child custody and parenting time. In a landlord/tenant case, mediation can help parties compromise on unpaid rent or damages. In a land contract case, mediation can help work out a plan for missed payments. Before going to mediation, you should think about the problems that you want to cover.
Normally both parties will meet together with the mediator several times. You will each have a chance to tell the mediator and what you want to happen in the court case. The mediator is not a judge and won’t decide who is right or wrong in your case. The mediator won’t make decisions for you.
Mediation is a cooperative process. The mediator will help you and the other party make joint decisions. This type of mediation is called facilitative mediation.
You can ask the mediator to make a written recommendation about any issues you can't resolve during mediation. This is called evaluative mediation. The mediator can only make a recommendation if both parties ask for one. Neither of you can be punished if you don’t accept your mediator’s recommendation. No one can tell the judge what the recommendation said if one or both of you reject it.
For more information on the settlement process, read Settlement and Negotiation Strategies.
The Costs of Mediation
Mediators charge their own hourly fee, so the cost can vary. Many counties have a Community Dispute Resolution Center (CDRC), which may have a sliding fee scale. The court will likely order the parties to each pay half the cost of mediation. If you are ordered to mediate and you can’t afford it, you can ask the court to appoint a free or low-cost mediator. But these are not available in every county.
You can find information about mediation services in the “Community Services” section of this website.
What Are the Pros and Cons of Mediation?
Mediation may have the following benefits over a regular court process:
- It can resolve your dispute faster, especially in cases where you agree about most things
- It may cost you less, for example, in court fees or time off work for court dates
- It may be more confidential than a trial. The final judgment is a public record, but your settlement talks stay private
- You will have more control over the outcome of your dispute
- Avoiding the sometimes combative court process may be better for your relationship with the other party, especially if you have children together
- If you all have agreed to the solution, you are all more likely to stick to it
Mediation is not the best choice for every legal dispute. Your case might not be right for mediation if any of the following are true:
- There has been a history of abuse or intimidation between the parties
- One of the parties is used to being in control and making all of the decisions
- One or both of the parties are not able to represent themselves in mediation. For example, if one of you has a physical or language barrier. In this situation, you both may need to have lawyers during mediation
- The health or safety of one or both of you might be put at risk by mediation
- You don’t yet have all the information you will need to evaluate offered compromises. If this is true, it might be too early to try mediation
If any of these apply to you, you may want to consider hiring a lawyer so that you get the best possible result in your case.
Mediation Does Not Replace the Need for Legal Advice
Mediators will not give you legal advice or represent you. Many mediators are not lawyers. Mediation may reduce your need for legal representation. But you should consider talking to a lawyer to make sure you understand your rights and the legal consequences of agreements made during mediation.
If you need a lawyer and are low-income, you may qualify for free legal help. You can use the "Find a Lawyer" section on this page to look for legal help in your area.
Are There Other Types of Dispute Resolution That May Be Used in My Case?
Yes. Mediation is just one tool that may be used to reach an agreement in your case. Other options are as follows:
Arbitration is a private, voluntary process where you and the other party choose a neutral person to make a decision in your case. The arbitrator’s decision is normally binding, which means that it becomes part of your final judgment even if you don’t agree with it. This is what makes arbitration different from mediation. The arbitrator’s decision becomes the final order even if one or both of you disagree with it.
Conciliation (in Family Law Cases)
Conciliation is a Friend of the Court (FOC) process that is less formal than mediation. In conciliation, the FOC works with both parties to try to resolve disagreements. Conciliation usually takes place early in a case. It may result in temporary orders, for example, for custody, parenting time, and child support.
If you go to conciliation but don't reach an agreement with the other party, the FOC may issue a written recommendation. This recommendation is usually sent to the judge. The recommendation may become a temporary order if the judge signs it. Then, you and the other party have the right to file objections to the order if either of you disagrees with it.
FOC conciliation is not used in every county and may be different in the counties where it is used.
Friend of the Court Mediation (in Family Law Cases)
In some counties, the Friend of the Court may provide mediation services in family law cases. If you don't reach an agreement through FOC mediation, the Friend of the Court may do an investigation or hold a hearing.To learn more about the Friend of the Court’s role in your family law case, read Friend of the Court Overview.
At any point in the course of your case, you and the other party can try to settle your legal dispute through negotiation. You can do this outside of the courtroom and without the help of a mediator, referee, or other court staff. Your negotiation may be face-to-face, or by phone calls, text, or letters.
To learn more about how to prepare for negotiation, how to communicate with the other party, and what to do if you reach an agreement, read Settlement and Negotiation Strategies.