What exactly is a court ordered mediation
7 attorney answers
Mediation is a confidential settlement process wherein two or more parties, with or without attorneys, meet with a neutral third party, the mediator, who assists the parties in reaching a mutually acceptable resolution of a dispute. The mediator is not empowered to impose a resolution on the parties, who maintain control over the process and pursue a mutually acceptable resolution with the assistance of the mediator.
Pretty much. If it's a civil case, you'll have a short intro meeting with mediator then go to your separate rooms. Then the mediator will go from room to room first discussing each sides' merits, then discussing each sides money proposals (of what they will pay or accept). At the end of the day, you'll hammer out an agreement if the mediator can help get you close together and agree. Then sign a settlement agreement enforceable in court if either side breaches. Settlement negotiations are inadmissible generally. Those are the basics.
Please Note: This Answer is provided as an educational service. It is not intended to be legal advice, a guarantee, or the creation of an attorney-client relationship.
Just about that simple.
What is the nature of the case? Divorce?
This is a general Q&A Forum for discussion purposes only. Anything read here should be considered marginal information at best. It would be foolish to make important decisions based on this information. Real-life legal decisions are important and should not be trusted to the free-flow of thoughts on the internet. If you need assistance, hire a professional who can listen to all of the facts and help you make informed decisions.
A mediator is a neutral person who helps both parties come to agreement. On the other hand, a lawyer represents the interests of one party. You can use the services of either or both. When mediation is court-ordered, the court requires that the parties make an attempt at reaching agreement through mediation. The attempt is not always successful. If you have a fairly amicable relationship with the other party, mediation is often the preferred route as you can reach a decision that will work best for both of you, often at a substantially lower cost. If you have an adversarial relationship, mediation may not work as well. Another option is for each party to be represented by an attorney in mediation.
A response to a question posted on Avvo is not intended to create an attorney-client relationship. It is informational only.
The key to your understanding is "discussing. In order for you to attend in mediation in good faith you should either make an offer to settle the issues or respond to an offer made to you. Simply appearing does not get it.
Any statements made by the attorney are not legal advice and the attorney-client relationship is not formed by any exchanges on Avvo. Further information may be received by contacting the attorney by email or phone.
You are describing one type of mediation. In a facilitative mediation the parties meet together with the mediator, and the mediator helps guide the discussion through careful questioning, restating the parties' positions, and generally clarifying the communications between the parties.
In Texas the more common type of mediation is evaluative. In this setting the parties will meet together with the mediator at the beginning and lay out the issues that they are trying to resolve in the mediation. After all the issues are laid out, and the parties have outlined their positions, the mediator will meet with the parties separately to evaluate the strength and weaknesses of each parties case. Also in these separate meetings, called "caucuses", the mediator may ask for, or the party may offer, a settlement offer. The mediator will then take the settlement offer and/or any authorized information to the other party and go through the same process with them (note: due to the confidentiality the mediator adopts for the mediation, he or she can only communicate things were discussed with a party with that party's permission). This back and forth continues until a settlement is reached or the mediator calls an impasse.
Mediation is simple but it is not to be taken lightly. It’s your opportunity to try to reach an agreement that will help you avoid going to trial.
Ordinarily, in advance of the mediation, each party submits a letter outlining their position and additionally, submit evidence in support of their position. Before you go to the mediation, you want to give thought to what issues you are comfortable giving up in order to reach a settlement, and which issues are really important and not as negotiable.
If this is a family law matter, where more detailed orders are usually required to conclude a case, it is optimal to provide proposed orders.
If you are able to reach an agreement during the mediation, it is important to reduce that agreement to a writing while at the mediation. The more detailed the agreement, the better as that leaves less room for misunderstanding.
Often parties go to mediation, they think they reached an agreement but later there is a dispute about the details and then the question becomes whether there was or was not an agreement.
Sometimes, parties go into a mediation a little unprepared and think of it as a place to just “feel out” where the other side is coming from. However, the court usually only requires parties to attend ONE settlement conference. So, if you don’t settle and later realize you case is not very strong, you may have missed your opportunity to settle.
Even if you think you can handle the mediation on your own or you don't think you are in a financial position to have representation at the mediation, it is a good idea to meet with a local lawyer who practices in the type of law relevant to your case in order to secure a consultation. That lawyer can explore the facts of your case with you and give you some guidance on how to prepare your letter, what a reasonable or unreasonable proposal might be, and what type of evidence you will want to present to present the best case possible.