Mediation is a Cost Effective Way to Settle Your Differences
In recent years, there has been slow but steady movement away from the expensive, stressful, and time-consuming adversarial legal system as a way of settling personal injury disputes.
What is mediation?
Mediation is a process for settling legal disputes between parties that does not involve taking the dispute before a judge. This process involves negotiation between the parties involved via their attorneys, presided over by an impartial third party: the mediator.
Mediation differs from a court ruling in that it is not intended to determine which of the two parties is in the right, and does not attempt to make a decision about the outcome of the case. Instead, parties go through the mediation process in order to reach a mutually agreeable solution to their dispute, without appealing to a judge to make a binding decision. This gives each party a chance to express concerns, clear up any misunderstandings, vent their feelings, examine any underlying causes for the dispute, find some common ground, and hopefully reach a consensus about how to settle their dispute amicably.
This settlement is decided on purely by the parties involved and their attorneys – the mediator does not make a decision regarding the outcome of the mediation, serving only to help facilitate negotiation between the parties.
You are not another client. You are an individual who has come to us for help at a time when your level of stress and your emotions might impact your abilities to make the right choices. I will help you work through your civil case and help you see the light at the end of the tunnel.
Anthony J. Sciuto joined the law firm of Maggiano, DiGirolamo & Lizzi in March 2008 and is of counsel to the firm, where he continues his practice in Alternate Dispute Resolution. He is retired as Judge of the Superior Court of New Jersey Bergen County vicinage where he served for 20 years.
Mr. Sciuto for a 12 year period during his tenure as a judge managed and presided over a large number of medical malpractice and related products liability cases. He also presided over and has significant experience in general civil cases, including contracts, personal injury, property damage, discrimination, environmental, and construction as well as many other miscellaneous matters that are litigated in the civil division. Arbitration and mediation also played a substantial role in his judicial career.
What is the mediation process?
Typically, the mediator will ask each attorney to prepare a brief summary of the issues in dispute prior to mediation. There may also be a period of informal discovery, where the attorneys exchange discovery materials in order to accommodate the mediation process. During mediation sessions, the mediator will ask each party’s attorneys to make brief presentations of their side of the issues in dispute, following certain rules established by the court. All mediation is confidential, and cannot be discussed outside of the mediation process without the consent of both parties. Depending on the situation, the mediator will discuss with parties together or separately in order to help examine the dispute and reach an amicable resolution. If such a conclusion can be reached, the mediator alerts the court and the case is formally dismissed.
The first two hours of a mediation are paid by the court, after which any party involved may opt out of mediation. Any service rendered after the initial two hours is paid for by the parties involved, with the cost being split evenly unless otherwise determined by the court.
Attorneys and litigants involved in mediation are expected and required to make an attempt in good faith to cooperate with the mediator and discuss their dispute constructively. Attorneys are meant to keep their clients informed of the mediation process and advocate for their clients’ interests, but clients are given the chance to voice their concerns in the dispute directly. This gives each party a greater chance at understanding the issues and concerns of the others involved in the dispute, which can help facilitate reaching an agreement.
If an agreement cannot be reached, or is only reached in part, then the parties may refer to an expert for a binding or non-binding opinion on a potential resolution, or take their dispute back to court in order to present their cases at trial.
When and how does a case go to mediation?
The cases that go through mediation do not necessarily conform to any particular type – instead, they share a number of characteristics which make them more conducive to out-of-court settlements, such as:
- Ongoing business or personal relationships between the parties
- Communication difficulties between parties that may be alleviated by a mediator
- Personal or emotional factors exacerbating the dispute
- Complex technical or scientific expertise required to resolve the issue of the dispute
- When time is a large factor in the parties’ decision to settle their dispute
- When parties do not want to hand control over the case’s outcome to a judge and/or wish to tailor a solution to specific needs
- When parties seek a dispute resolution in private.
Mediation is a negotiation process, and is not therefore exclusive to any single type of case. The individual details of each case will determine whether or not mediation is appropriate. This determination can be made by the parties involved, or recommended by the judge or court staff at any time during the case – though some cases are automatically referred to mediation – for instance cases involving:
- Employment or professional disputes
- Civil Rights and discrimination
- Contractual or commercial transaction disputes
- Tenancy disputes
- Toxic Tort
- Construction disputes
- Real Property
- Environmental litigation
What are the benefits of mediation?
Settling out of court can have a number of benefits to the case, including:
- Finding a solution that both parties can agree with and benefit from
- Finding a solution that is tailored to the specific situation of each party
- Finding resolutions with the help of a mediator that the individual parties involved might not have considered
- Finding a more expedient, more involved, less formal, and less costly and time consuming alternative to a traditional trial.