Determine if mediation is required before suit or optional.
When you sue someone, especially if based on contract, many times there is a mediation provision. This provision can state something like the following "mediation is required before either party can proceed to civil litigation. If one party proceeds to litigation without mediating the matter, the party that starts the litigation process will be required to pay the other side's attorneys fees." If there is a provision like this in your contract, you are required to go to mediation, or request mediation in a demand letter BEFORE proceeding to litigation. If you have requested mediation via a demand letter and the other side has not responded after a reasonable amount of time, you then can file suit. However, please keep a copy of the demand letter and proof that you sent it to the other side. I always send it in the mail, e-mail, and via fax keeping the transmission notice.
If mediation is required, how do I find one?
If you are required to find a mediator, you can work with the other side and come up with a list of 5 mediators per side and decide upon one of them. If you have to go court appointed mediation, there are services available in the courthouse to assist you.
Sometimes law schools offer mediation services. For example, Loyola Law School has the Center for Conflict Resolution which serves Los Angeles County. Mediators based out of law schools are sometimes cheaper then private mediators.
When I find a mediator, what do I do next?
Once you find a mediator that suits your needs, contact the mediator and find out what the fees are going to be. These fees are split between both parties. You will need to pay the mediator for a minimum of 4 hours at the beginning of the session, so please bring your checkbook.
You can also ask the mediator if he/she would want you to bring copies of your documents. It may be easier for you to have multiple copies of the records that prove your case, i.e. your contract etc.
Once the preliminaries are done, what's next the phone conversation with the mediator?
Once you have contacted the mediator and asked about the fees, copies, etc. you can talk to the mediator about the process and understand what to expect. For example, many times people bring their attorneys and let the attorneys speak for them. This is NOT advised. Of course you may bring your attorneys, but many mediators will ask that you speak for yourself. You will NOT be interrupted when speaking, and so you will be able to express your viewpoint. The mediator may ask questions for clarification.
The other side will get their chance to speak uninterrupted as well. However, while you are speaking the other side will be required to simply write points down on their pad of paper that they wish to address when it is their turn. Don't worry, you are not required to bring paper and pens, the mediator will provide that for you.
What happens during the mediation?
During the mediation, the mediator will control how the session works in terms of process. This means, the mediator will say who talks first, give each side a chance to explain themselves, and ask questions. Near the end of the mediation if things are going well, the mediator may ask that the parties talk to each other while the mediator remains quiet. It is important that each side is heard and understood.
After the mediation is completed, either you will come to an agreement or you will not. If the parties come to an agreement, the mediator can write up the agreement and both parties can sign the agreement. If there is not agreement, the mediation ends and you have satisfied the mediation requirement in your contract if you have one, and/or the court appointed mediation. It is not necessary to come to an agreement.
If I come to an agreement, can it be binding?
YES! If you come to an agreement through mediation it can become binding. This means that both parties must agree to the terms of such agreement. If there is a binding agreement this becomes your agreement and you can use legal measures to enforce this agreement should the other party not abide by its terms.
Mediation can be incredibly effective and used in a variety of situations from civil disputes to divorce proceedings. Please call us for more information at 714.642.3838. We offer 30 minute FREE phone consultations to answer your questions.
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