MEDIATION
Often times, a law suit boils down to opposing parties standing firmly on their principles and preparing for a show down. One problem with a show down is that preparation for trial, and going to trial take time and cost client's money. Another problem with a show down is that somebody gets shot. The courts have embraced mediation as a means of encouraging parties to take a step back from their principles, evaluate their cases in a fiscally responsible manner, consider the cases of their opposition, and possibly settle without a show down. All family law clients, and most civil law clients will be court ordered to participate in some form of dispute resolutionmost often, meditationbefore, or in lieu of, going to trial.
Our Senior Partner, Webster Hart, mediates several civil disputes each year. With Web's experience as a trial lawyerover thirty years, including the largest jury verdict ever awarded in Eau Claire Countyhe is quick to evaluate the strengths and weaknesses on both sides of a case. Web does not decide the case, but rather, attempts to give insight to each side as to the costs of going to trial, and what might happen at trial. Most often Web is able to mediate an agreement between the opposing parties.
We also conduct divorce mediations. After a divorce, the parties sometimes have continuing relationshipseg. continuing to share parenting responsibilities. Mediated divorces allow parties to divorce without some of the anger and resentment associated with disputed divorces. Additionally, stipulated agreements often need less enforcement than judicial orders.
Jon Theisen, an associate in the firm, has a background in counseling, as well as training as a mediator. He often mediates between parties whom have child placement disputes.
What is mediation?
In short, mediation is a meeting with a goal of settling a dispute. Mediation takes place between the two opposing sides of a case, and a neutral mediator. The mediator does not represent either side of the dispute. Rather, the mediator's goal is to facilitate discussion leading to a resolution acceptable to both sides. If such an agreement is reached, both parties sign a contract stating their agreement . The contract is binding, and often protected by the courts. If all issues are resolved through mediation, the case is dismissed.
Why should we mediate?
Mediation gives both sides the opportunity to state their case, hear the other side, and agree upon a resolution. Most importantly, mediation gives the parties control of their case and its settlement.
If the case goes to trial, court procedures and rules of evidence will control the information which can be made known to the trier of fact. Sometimes, what may not be relevant to a court of law, may be the same fact that is the cause of your dispute.
The judge or jury controls the verdict after trial. During mediation, a party is free to suggest solutions that a judge would not have thought of, or would not be able to suggest. At mediation, the parties control the settlement. They know what would or would not work, and they fashion their agreement accordingly.
How does mediation work?
Mediation is flexible. Although the process is controlled by the mediator, the parties should be sure and voice their opinions as to how they are most comfortable. An insurance dispute may be a matter of numbers, and therefore the parties may be on the telephone or in separate offices. An family matter may give the parties an opportunity to sit across from each other and start working things out together.
Mediation can take anywhere from about an hour to all day. The mediation should last as long as the dispute is productively moving towards resolution. Generally, both parties split the cost of the mediator. Sometimes, the parties provide information to the mediator ahead of time. Mediation is flexible, however, both sides should have the same opportunity to provide their side of the story.
Who serves as the mediator?
Often, mediators are lawyers. As lawyers, they have experience with cases and trial work. They can offer some valuable predictions as to how things might work out if the case goes to trial. The mediator cannot be a lawyer for either of the parties. The parties lawyers are advocates, while the mediator must remain neutral. If a lawyer mediates a case, and the case does not settle, the lawyer cannot go on to represent either party in the dispute.
What if we mediate, but still do not come to an agreement?
What happens in mediation, stays in mediation. Offers or concessions made during mediation are not admissible in court. The rules of evidence exclude information obtained in mediation so as to promote good faith discussions during the mediation.
If mediation fails, the case continues on towards trial. It should be noted, however, that mediation probably helped the case move closer to a resolution, and that the case can still settle before going to trial. Often, cases that do not settle at mediation, settle in the days or weeks after mediation.
