Updated: Apr 13
When a lawsuit is filed, the parties involved typically assume that they will end up in court to resolve their dispute. However, there is another option: mediation. Mediation is a form of alternative dispute resolution that allows the parties to work with a neutral third-party mediator to reach a mutually agreeable solution. In this blog post, we'll explore how the mediation process works in a lawsuit and the differences between court-ordered mediation and voluntary mediation.
The mediation process typically begins with the selection of a mediator. The mediator is typically a neutral third-party who has experience in mediating disputes. Once the mediator is selected, they will work with the parties to schedule a mediation session.
Choosing a Mediator
The selection of a mediator is a crucial step in the mediation process. Here are some common methods for selecting a mediator:
Agreement between the parties: The parties can agree on a mediator together. This can be done through mutual negotiation, or they may choose a mediator from a pre-approved list or panel of mediators.
Court appointment: In some cases, a judge may appoint a mediator for the parties. This is typically done in cases where the parties are unable to agree on a mediator, or when the court believes that mediation may be an effective way to resolve the dispute.
Mediation organizations: There are many organizations that provide mediation services, and they often have a roster of trained and experienced mediators. The parties can choose a mediator from this list, based on the mediator's qualifications and experience.
Referral from attorneys: Attorneys who specialize in mediation may have a list of mediators that they frequently work with and recommend to their clients.
When selecting a mediator, it's important to consider factors such as the mediator's experience, training, and reputation. The mediator should also be impartial and unbiased, with no conflicts of interest that could impact their ability to mediate the dispute fairly.
It's also important to choose a mediator who is a good fit for the parties and the dispute at hand. For example, a mediator with experience in family law may not be the best choice for a complex commercial dispute. Similarly, the mediator's style and approach to mediation should be considered, as some mediators may be more aggressive or facilitative in their approach than others.
At The Mediation
At the mediation session, the parties will typically start by making opening statements, which can include an overview of their positions and goals for the mediation. The mediator will then work with the parties to identify the key issues and areas of agreement and disagreement. The mediator will typically meet with each party separately to discuss their concerns and possible solutions.
Throughout the mediation session, the mediator will help the parties to negotiate and explore potential solutions. The mediator may suggest compromises or offer creative solutions that the parties had not considered. The mediator does not make any decisions or impose any solutions; instead, they facilitate the conversation and help the parties to come up with their own solutions.
If the parties are able to reach a mutually agreeable solution, the mediator will help them to draft a written agreement. If the parties are unable to reach an agreement, they may still be able to use the progress made during mediation to inform their next steps in the litigation process.
When selecting a mediator, it's important to consider factors such as the mediator's experience, training, and reputation.
In some cases, a judge may order the parties to participate in mediation before proceeding to trial. This is known as court-ordered mediation. Court-ordered mediation is typically mandatory, meaning that the parties must participate whether they want to or not. In some states, cases are automatically selected for mediation, while in others the parties may choose to request mediation.
Typically, court-ordered mediation is used in cases where the parties are unlikely to reach an agreement without outside help. By requiring the parties to attend a mediation session and work with a neutral third-party mediator, the judge will often be able to encourage them to come up with their own solutions.
In other cases, the parties may decide to participate in mediation on their own volition. This is known as voluntary mediation. Voluntary mediation can be beneficial because it allows the parties to take control of their case and reach a resolution without having to wait for a judge’s ruling. Additionally, voluntary mediation does not require either party to concede any ground or give up any rights; instead, it simply gives them the opportunity to explore potential solutions outside of court.
Binding Written Agreement
While mediation itself is non-binding, a written agreement reached through mediation can be binding. If the parties are able to reach a mutually agreeable solution, the mediator will help them to draft a written agreement that sets out the terms of the settlement. This written agreement can be legally binding, and can be enforced in court if necessary.
A binding written agreement reached through mediation can be a powerful tool for resolving disputes. It allows the parties to avoid the time and expense of litigation, and gives them control over the outcome of their dispute. If the parties are able to reach an agreement through mediation, it's important that the agreement is carefully drafted and reviewed by each party's attorney to ensure that it accurately reflects their intentions and is legally enforceable.
Mediation can be a powerful tool for resolving disputes in a lawsuit. Whether court-ordered or voluntary, the mediation process allows parties to work together to find mutually agreeable solutions. If you are involved in a lawsuit, consider whether mediation may be a viable alternative to going to court. Work with an experienced attorney to explore your options and determine the best course of action.
If you would like more information about this post or if you want to discuss your legal matter with an attorney at the Law Offices of Peter J. Lamont, please contact me at firstname.lastname@example.org or at (201) 904-2211. Don't forget to check out and subscribe to our podcast and YouTube channel. We have hundreds of podcasts and videos concerning a variety of business and legal topics. I look forward to answering any questions that you might have.
DISCLAIMER: The contents of this website and post are intended to convey general information only and not to provide legal advice or opinions. The contents of this website and the posting and viewing of the information on this website should not be construed as, and should not be relied upon for, legal or tax advice in any particular circumstance or fact situation. Nothing on this website is an offer to represent you, and nothing on this website is intended to create an attorney‑client relationship. An attorney-client relationship may only be established through direct attorney‑to‑client communication that is confirmed by the execution of an engagement agreement.
As with any legal issue, it is important that you obtain competent legal counsel before making any decisions about how to respond to a subpoena or whether to challenge one - even if you believe that compliance is not required. Because each situation is different, it may be impossible for this article to address all issues raised by every situation encountered in responding to a subpoena. The information below can give you guidance regarding some common issues related to subpoenas, but you should consult with an attorney before taking any actions (or refraining from acts) based on these suggestions. Separately, this post will focus on New Jersey law. If you receive a subpoena in a state other than New Jersey you should immediately seek the advice of an attorney in your state as certain rules differ in other states.