Alex Halow, Mediator and Immigration Attorney

What is mediation?

Mediation is a type of “alternative dispute resolution” where the people involved in a dispute sit down with a neutral third party mediator and work to reach a voluntary resolution. Mediation is often used in connection with legal disputes, but can be useful in resolving any conflict between two or more people.

How is mediation different from suing in court?

In mediation, the parties sit down privately at a time of their choosing, and work to resolve their dispute. With very narrow exceptions, what happens in the mediation is kept confidential, and cannot be used in court later. Any resolution of the dispute is voluntary, as all parties must agree to the resolution. The mediator facilitates the negotiations between the parties, and helps them clarify their positions and goals. Where appropriate, and if requested to do so by the parties, the mediator may give them feedback about their dispute and the mediator’s view of how a court might decide it. However, the mediator does not give out legal or financial advice, or impose a resolution of the dispute on the parties.

If the parties are unable to arrive at a resolution of their dispute through mediation, the mediator may call an impasse and end the mediation. If that happens, the parties are no worse off than when they started the mediation, and may have a better understanding of both their own position and the other side’s position, which might allow them to resolve the dispute later. On the other hand, if the dispute is resolved, there is a very real chance that all parties will walk away from the mediation satisfied with the resolution, since they will have agreed to it. Mediation gives parties an opportunity to end up with a “win/win” resolution of a dispute.

In a lawsuit, once the case has been filed, the judge assigned to the case usually sets deadlines for discovery and pre-trial motions, and eventually sets a date for trial. Courts often have a large backlog of cases, and it can take months or even years for your case to come to trial. Preparing for trial takes a great deal of time and expense. Once the case comes to trial, the parties present their cases before a judge or a judge and jury, usually in a public proceeding. Either the judge or jury makes a determination about who is right and who is wrong, and then imposes a decision on the parties. Most people find litigation to be extremely nerve-wracking, and in the end one party or the other (and sometimes both) ends up feeling like they lost, and will be dissatisfied with the result.

In many jurisdictions, if you do sue in court, the judge hearing the case may order you to participate in mediation before your case goes to trial. In those situations, although you are required to participate in the mediation, you are not required to settle the case. However, you should view mediation as an opportunity to settle your case on terms agreeable to you. An even better option would be to contact me about mediating your case before you begin litigation, or if a lawsuit has already been filed, before litigation proceeds far enough for the case to be referred for mediation.

How can mediation save me time and money?

As outlined above, mediation can save parties time because they are in complete control of when the mediation will occur. The only timing issue is coordinating the schedules of all the parties and the mediator. By contrast, courts are overworked and under-resourced, and it can take months or years before your case comes to trial. The parties have to work around the court’s schedule, and the court often will not allow much flexibility. In terms of money, mediation is much, much less expensive than litigating a case through trial. Most mediators bill at an hourly rate that is less than the rates billed by most lawyers, and the parties to the dispute normally split that fee amongst them. Mediation also takes much less time than litigation, which in turn reduces the cost.

How is mediation different from arbitration?

There are other types of alternative dispute resolution. Probably the best known of these is arbitration. In arbitration, the parties submit their dispute to an impartial third party (an “arbitrator”) who makes a decision about how the dispute should be resolved. In some cases, the arbitration is “binding”, meaning that the parties have agreed they will abide by the arbitrator’s decision. In other cases, the arbitration is “non-binding”, meaning that the parties can either accept the arbitrator’s decision or move on to litigating in court. Binding arbitration can be similar to litigating a case in court, but is more private, less expensive, and uses less complicated procedures and rules.

Mediation is different from arbitration in several important ways. In mediation, the mediator does not make a decision about the dispute, and instead focuses on helping the parties resolve their differences. Also, unlike in binding arbitration, the mediator does not impose a result on the parties. Any resolution of the dispute in mediation has to be voluntary and decided upon by the parties. As with court cases, mediation may give the parties a better chance to arrive at a “win/win” solution as opposed to arbitration, since the parties are free to come up with their own resolution to their dispute.

How does mediation work?

The first step to mediating your dispute is to contact a mediator and ask them to schedule a mediation. The other parties to the dispute also have to agree to mediate, but the mediator may be able to help you convince them to come to the table. Once all parties have agreed to mediate, a time, date and place for the mediation is set.

At a typical mediation, the parties and the mediator start out meeting together in a “joint session.” The mediator introduces all of the parties to each other, and explains how the mediation will work. The mediator then invites each party to give a short statement explaining their side of the dispute and their position regarding how it should be resolved. The mediator then helps the parties clarify their positions and goals, and works with the parties to identify different ways to resolve their dispute. The mediator may then meet with the parties privately (these private meetings are called “caucuses”) to further clarify their positions and identify possible resolutions. If a resolution is possible (and sometimes even if it is not), the mediator will reconvene the parties in a joint session and with help from the parties draft a memorandum of understanding that puts the resolution into writing. If a resolution is not possible, the mediator will end the mediation for that day. That may be the end of the mediation, or the parties may agree to reconvene and continue the mediation at a later date.

If you have a dispute you think may benefit from mediation, please click here to read more about the mediation services I offer.

The information on this web site regarding mediation, immigration compliance, family-based immigration, or any other legal matter is general, and cannot be substituted for legal advice.