Mediation in Civil Cases
Updated: May 22
You’re going to mediation. You wonder: What should I do?
Mediation is a process where opposing parties meet together, before a neutral party. The neutral party is called a mediator. The mediator will try to persuade and encourage the parties to reach an agreement. In some mediations, there will only be one mediator; in other mediations, there will be two or more mediators.
Mediation is used to settle many types of court cases, including family, divorce, civil, personal injury, small claims, and probate cases.
The major advantage of mediation is that, the mediator is not like a judge; he does not have any authority to order any party to the mediation to do anything. That means, if you go to mediation, you will never walk out of the room being ordered to do anything you do not agree to. Because of this, many people are happy with the results of the mediation. Many attorneys (myself included) will encourage their clients to go to mediation rather than arguing in trial. Mediation is often highly effective in reaching a settlement. Many of my clients, who at first didn’t want to go to mediation, have been pleasantly surprise at the results of mediation.
In some cases, courts order mediation. In Oklahoma, a statute requires that you mediate certain cases before you go to court. In other cases, the parties agree to go to mediation. You can have a mediation at any time – even before you file a lawsuit. You can also have a mediation after the court enters judgment. At a mediation that takes place after a court enters judgment, the parties can agree to deviate from what the court ordered at judgment. Mediation is used to settle many types of cases: personal injury suits, debt collection, divorce and custody cases, probate disputes, and many others. Mediation has settled cases for very small amounts as well as for very large amounts; a few years ago, in mediation, the NFL reached a $765 million settlement with retired players over concussions.
When you go to mediation, you will usually be allowed to be accompanied by your attorney, if you have one. The opposing party will also be allowed to have an attorney present. However, no one else (including friends or family) will be allowed to be present in the room. The proceedings will be kept confidential; the mediator will not be allowed to reveal anything about the mediation to anyone else. Also, no one can be ordered to testify in court, about what took place during the mediation. This means you will be able to speak freely during the mediation, without fear that anything you say could be used against you in court.
In some mediations, the parties will all be in the same room together. In other mediations, the parties will stay in separate rooms –this may be necessary in cases where emotions are high and the parties are unable to have a productive discussion. In some mediations, the parties will be in the same room together during parts of the mediation, and will be in separate rooms during other parts of the mediation. (If you are at a mediation, and you are in the same room with the opposing party, and you want to meet with the mediator without the opposing party present, feel free to ask the mediator to send the opposing party out of the room, while you meet with the mediator privately. Most mediators will be happy to do this.)
The best advice I can give to anyone going into a mediation is: If the other side makes a demand, to which you don’t want to agree, say no. However, don’t hold out for too much, and don’t refuse to agree to a reasonable offer. If you don’t reach an agreement at mediation, you’ll probably have to go to trial, which will be far more expensive, time-consuming, and emotionally taxing than mediation. Generally, to reach an agreement at mediation, you will have to give more than you want, but your opponent will also have to give more than he wants. It can be a difficult choice, to decide when to agree and when to argue for more. If you have an attorney, he can advise you whether to accept or decline a settlement. At some mediations, you may be allowed to leave the mediation, think over an offer, and come back another day and announce whether you want to accept or reject an offer.
If you reach an agreement at mediation, this agreement may be reduced to writing, signed by a judge, and filed in court, and will then be legally binding. A mediation may also be able to settle some issues in a case, but not others. If a mediation settles only some of the issues in a case, a court will hear only the issues that mediation did not resolve.
If you are currently involved in a dispute, and are wondering whether to go to mediation, I would encourage you: go to mediation. Even if your mediation doesn’t settle your case, mediation is definitely worth trying.