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Mediation

What is mediation?
When you have a dispute with someone that you cannot seem to settle, you do not necessarily have to file a lawsuit. There may be an easier, less expensive way to solve the problem. Mediation is a problem solving method that uses a neutral person, the mediator, to guide discussions and help disputing parties arrive at an agreeable solution for everyone involved.

Mediation is the fastest growing alternative dispute resolution method. Many family and small claims courts now require parties to attempt mediation before their disputes are heard in court.

When would I use mediation?
Mediation may be used at any time before, during or after a court process to resolve or clarify issues. Any dispute may be right for mediation. Mediation is especially helpful if you want to preserve your ongoing relationships or end an existing relationship in a cooperative way. For example, disputes among family members, co-workers or neighbors may be settled more amicably through mediation than through a lawsuit. Landlord-tenant problems, contractor disputes, divorce issues and small claims matters are also often appropriate for mediation.

If you are involved in a dispute that has already entered the court system, mediation may be mandatory. Court-ordered mediation for small claims and divorce matters has become common in recent years.

What does the mediator do?
The mediator’s job is to keep everyone talking and moving toward an agreement. The mediator talks with each party to identify the main issues, while trying to find areas of agreement on minor issues. The mediator may suggest various ways to settle the disagreement, known as “settlement options.”

A mediator will not make a decision about the dispute or how to solve the issue. He or she will encourage discussion, understanding and creative problem solving in an effort to move everyone toward agreement.

Will a mediator tell me my legal rights?
No. You may want to talk with a lawyer who can explain your legal rights and point out the risks of the various settlement options. Lawyers may also help the parties focus on solutions that best meet their legal needs.

No matter what the issue, style or type of mediation, the goal is always to reach a satisfactory agreement on all or some of the topics that brought the parties to mediation in the first place. Mediation can be used to narrow issues or bring fewer issues to court.

Why does mediation work?
The key to the mediation process is that the parties are communicating and making their own decisions. Working through mediation rather than relying on a court to make a decision is more likely to satisfy everyone concerned. Through mediation you may be able to reach an agreement that is better suited to your needs than a court would be able to accomplish.

Through mediation you may avoid hostility and harsh feelings that you might encounter in a court hearing. Mediation is often quicker and less expensive than court. Scheduled mediation sessions can be based on your calendars and not the court’s docket. You are also able to have a greater opportunity to personally impact the outcome of the dispute. Mediation is also confidential. The mediator, unlike a judge or an arbitrator, does not issue a final decision concerning the case. There is a settlement only if all parties agree. Once a settlement is reached, it is enforceable.

When would mediation not be the right option for me?
Mediation may not be appropriate in some cases. Mediation will not work if one side is interested only in revenge or having someone say who is right and who is wrong. Mediation may also not work when one party is unable to negotiate because of substance abuse or psychological problems, or if one of the parties is physically or emotionally abusive.

How do I select a mediator?
Court-ordered mediation begins when a judge orders it. The mediator for the parties is appointed by the court from a list of qualified mediators. Court-connected mediators in domestic relations and general civil cases (including those in small claims court) are required by the Oregon Judicial Department to meet certain qualifications.

For voluntary mediation, you should interview at least a few different mediators to decide which one would be the best “fit” for your situation. You might choose to use a mediator alone or with the advice or assistance of a lawyer. Lawyers, mental health professionals and others who have experienced mediation may be good resources when looking for a mediator.

What should I ask in the interview?
Ask the mediator to send you his or her promotional materials, resume and references. If you are using a community mediation center, ask for materials about the center itself. Here are some things you may want to discuss with potential mediators:

-Mediation training: How was the mediator trained? Some mediators receive formal classroom-style training. Others participate in apprenticeships or mentoring programs. Most professional mediators have had some type of formal training. How many hours of training has this mediator had? How recent was the training? Some mediators are lawyers; some have training in other professions.

-Experience: Evaluate the mediator’s type and amount of experience (number of years of mediation, number of mediations conducted, and types of mediations conducted). How many cases similar to yours has the mediator handled? A mediator’s experience is particularly important if he or she has limited formal training.

-Specifics: Where and when would mediation take place? What are the rates and methods for billing? Is it possible to get a copy of a standard contract (“agreement to mediate”) in advance?

-Other questions: May I contact former clients as references? Do I feel comfortable talking to this mediator? Does the mediator answer my questions? Does the mediator give me clear information in language I can understand? Do I feel confident that the mediator knows enough to handle my dispute? If I get confused about the process, will I be able to ask the mediator for explanations?

What will mediation cost?
The cost often depends upon the specific type of mediation. The court may waive the cost of court-ordered mediation, order either party to pay the entire cost of mediation, or order both parties to share the cost. However, in some small claims or landlord-tenant cases where mediation is court-ordered, there may be no charge.

In voluntary mediation, the parties are responsible for paying the expenses. Unless the parties agree to limit the number of mediation sessions, voluntary mediation may result in greater expense to both parties. This should be discussed and agreed to with the mediator in advance.

Mediation costs are usually based on an hourly rate or flat fee, depending upon the agreement to mediate between the parties and the mediator. Private mediators typically charge an hourly rate, while community mediation programs are usually free. Although there may be a cost for mediation, often the overall cost of the dispute will be less expensive if handled through mediation rather than litigation.

Legal editor: Sharon A. Williams, May 2008.