What is Mediation and Should You Partcipate
By Troy Okruhlik
You have been sued . Those are words nobody wants to hear . Whether it is a multi-million dollar lawsuit or a simple fender-bender car accident , a lawsuit can be timeconsuming , expensive , and stressful . Some of the stress results from anticipation of a formal trial . With trials , people often conjure visions of attorneys arguing with each other , witnesses testifying and getting crossexamined , and Perry Mason moments where a party or witness makes a stunning admission . Then a judge or a jury renders a verdict . One side wins , one side loses . However , studies show that more than 95 % of lawsuits never reach trial . How do all of these cases get resolved ? Some of the cases get dismissed by the court based on a motion brought by one of the parties , but most are resolved by a voluntary agreement reached by the parties . A settlement can substantially cut down on the stress , as well as the expenses , that would otherwise be incurred in a formal trial at the courthouse . Mediation is a process often utilized by courts and parties to facilitate the settlement of a lawsuit . Mediation is typically led by a trained , third-party , neutral who is often a lawyer or former judge . It is a simply a structured settlement conference between the parties , where the mediator can use different strategies to get the parties to communicate with each other about settlement , including shuttling back and forth between the parties in separate rooms , having the parties meet face to face in the same room , and sharing information and settlement ideas between the parties , including settlement ideas the mediator may have formulated after listening to both sides of the dispute . But , many people are confused by the process and have questions about how mediation works . Can I be forced into mediation ? Generally no , unless a contract between the parties requires mediation or the court orders mediation . Most mediations take place after all parties agree to participate . However , more and more courts are requiring parties to participate in mediation prior to trial . Often the parties will be able to agree on a mediator , location for the mediation , and how the mediator ’ s fee will be paid . What is the mediator ’ s role at the mediation ? The mediator is there to facilitate settlement discussions and serve as an impartial sounding board for the parties . The mediator can also offer his or her objective view of the claims or defenses and the evidence the parties may plan to submit at trial . The mediator ’ s goal is to encourage communication , promote understanding between the parties , and , hopefully help the parties reach a settlement . Will I be forced to settle my case if I do not want to settle ? No . The mediator may offer his opinion as to the wisdom of agreeing to a potential settlement , but a mediator has no authority to force either of the parties into an agreement they do not want . Any settlement reached at mediation will require the agreement of the parties . How long does it take and who pays the mediator ’ s fee ? Mediation typically lasts a full day , although it can be shortened to a few hours or extended to multiple days depending on the number of parties and the complexity of the case . Generally , the parties split the mediator ’ s fee , although that can be altered by the agreement of the parties . Also , some organizations offer low cost mediations in an effort to try to get cases resolved and ease crowded court dockets . Does the mediation process work ? In most circumstances , yes . Studies show that mediation is successful about 85 % of the time . The success rate is generally the same regardless of whether the mediation is scheduled early or late in the litigation process . Is mediation the same as arbitration ? No . You might hear the terms mediation and arbitration used interchangeably , but they are two very different procedures . Arbitration more closely resembles a formal trial in which each side is allowed to present evidence and make arguments to a decision maker , who operates much like a judge . Generally , arbitration decisions are binding and cannot be appealed . Arbitrators are typically lawyers or former judges who are paid by the parties to hear the dispute and render a decision . Most cases that end up in arbitration do so because of a contract between the parties that stipulates that any dispute arising out of or related to the contract must be arbitrated . Texas courts favor arbitration provisions in contracts and unless there is an unusual extenuating circumstance , will order the parties to arbitrate the dispute when the contract requires arbitration . Is mediation right for my lawsuit ? The decision to participate in mediation is an important decision to be thoroughly discussed with your attorney . Sometimes more information is needed to make informed decisions about whether to settle , and mediation may not be successful if the parties lack sufficient information . Also , some cases may not be capable of being settled until the court has ruled on certain discreet issues within the lawsuit . Timing and strategy play important roles in determining whether and when mediation is most likely to be successful .
This article is for informational purposes only and not for the purpose of providing legal advice . You should contact an attorney to obtain advice with respect to any particular issue .
Troy Okruhlik is an attorney with Harris , Finley & Bogle , P . C ., and is licensed to practice in Texas and Pennsylvania . He has been with HFB since graduating from Baylor Law School in 2001 . His broad range of experience includes commercial litigation , oil and gas , real estate , insurance , contracts , professional liability defense , fiduciary litigation , and business torts .
AUGUST 2017 PARKER COUNTY TODAY
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