Most legal disputes settle. Often times the parties have already hired attorneys and paid hefty legal fees so that their lawyers can negotiate back and forth to come to a resolution prior to going to court. Sometimes lawyers hire a mediator and the parties split the cost, in addition to legal fees they’ve already paid. Parties may even pay lawyers for their time during the mediation.
Studies indicate that most parties, even the most opposed parties, resolve their disputes in mediation, even if they have never tried mediation before. Overall, mediation is about 75% effective.
If most legal disputes settle anyway, why choose mediation instead of hiring lawyers and letting them resolve the dispute between them? Most lawyers charge an hourly rate or a flat fee that estimates the time or work involved in handling your case. If two parties pay separate lawyers an hourly rate of say, $185 per hour, and both have to work 10 hours to get your case resolved, you’ve spent at least $3,700 to settle your case between the two parties, not including additional filing fees or charges.
In contrast, a mediator usually charges an hourly or flat fee as well, but the fee is split between the parties, and mediations average 4 hours. (Obviously, some are longer and some are shorter.) Even if the mediator charges the same hourly rate, at 4 hours, you’ve only spent $740, and you will split that fee with the other party, so you are only down $370 in that hypothetical. (Rates vary for lawyers and mediators. Check with your mediator.) It can be much more economical.
Having Your Say
Mediation is not binding. In other words, the mediator only facilitates communication between the parties and does their best to find common ground to encourage resolution that both parties can live with. Nothing the mediator says or does is binding and, unless you sign a settlement document that you agree to, you can walk away from a mediation if it isn’t going your way.
The mediator is not a judge or a lawyer for the purposes of your mediation. They do not and cannot offer legal advice or tell you what a judge might or might not do. Instead, they get to the heart of the dispute. They listen to each party and help them craft a settlement that takes both sides’ interests into account.
This is not true of other forms of dispute resolution, including arbitration or going to court. In a courtroom, the judge is going to apply the law to your particular set of facts and decide based on what the statues and cases say. If the facts are not in your favor, you are likely to lose and you have nothing to say about it. If the judge orders you to do something, you must do it. You may not like the result, and you may end up paying part or all of the other side’s fees and costs in some types of cases.
Even if you decide to appeal and see if the higher court will see your side, it can drag out your case for years, and you still may not get the result you want. In fact, most appeals do not result in the judge being overturned.
In mediation, you will not be bound to anything unless you agree to it.