Mediation has become a popular preliminary step in legal disputes where the adverse parties may be able to resolve their differences through moderated dialogue. Many types of contracts and some statutory procedures require or encourage mediation as a first step in any dispute process. At its most successful, mediation can resolve problems quickly, at low cost, and in a way that leaves both sides in a dispute feeling satisfied with the outcome. Despite its friendly ideals, parties in mediation still need the assistance of lawyers to protect their interests.
What is mediation?
In mediation people or organizations that have a legal dispute meet with a mediator to discuss their problem in hopes of resolving it without resorting to more expensive and time-consuming legal solutions (typically, litigation). Mediators receive specialized training in providing neutral assistance to both parties, with the goal of helping each party identify their core issues, goals, and areas of potential compromise. Mediation usually is a confidential process, meaning that the parties can make statements without concern that they will be made public or later be used in litigation.
The mediation process
An attorney’s role in mediation begins long before the mediation meetings begin and can carry on until the process reaches a formal end, either in an agreement or, if the mediation didn’t successfully resolve the dispute, in further legal action. The process can be broken into three easily understood phases:
- Before mediation begins. At the preparatory stage an attorney helps the client gather information, make necessary disclosures to the other side, and craft a strategy. Attorneys also coach clients on how to handle difficult questions, understand the role of the mediator, and get clear about what mediation can and can’t accomplish.
- During mediation. The attorney’s assistance to the client during the mediation process differs significantly from his or her role in litigation. The largest difference is that the attorney is there to give advice to the client. Mediation is a discussion, not an argument, so the attorney does not speak directly with the mediator or the other side on the client’s behalf. The attorney’s role is primarily to help clients evaluate the merits of different proposals, weigh different strategies (such as whether to make or accept an offer), and frame arguments. Attorneys can also draft materials to assist the process and can help the client navigate procedural matters like scheduling.
- As mediation concludes. In some situations a successful mediation process needs to be followed up with an agreement between the parties that reduces their compromise to a document that can be legally enforced. The mediator may continue to play a role in crafting this kind of agreement, but the clients’ attorneys likely will play a key role in making sure that the agreement properly reflects the clients’ agreement. Once again the attorney’s goal at this stage is not to impose the attorney’s opinion about what the agreement should be, but rather is to ensure that the client’s preferences are met.
If the mediation was not successful the attorney’s role changes. Ensuring that the mediation is concluded correctly, with respect for the parties’ confidentiality, is just the first step. The attorney also discusses next steps with the client and potentially prepares for pursuing further actions, either in arbitration (where arbitration is required) or litigation. At this stage the attorney takes the wheel, in the sense that the other party no longer communicates directly with the client but instead works through the attorney.
GGRM is a Las Vegas personal injury and workers’ compensation law firm
For more than 45 years the law firm of Greenman Goldberg Raby Martinez has helped clients in the Las Vegas area protect their legal rights and recover compensation. We assist clients at all phases of their disputes and are happy to help clients pursue resolution of conflicts through mediation. For a confidential, no-cost attorney consultation, call us today at 702-388-4476, or ask us to call you through our contact page.