Most people who are going through, or believe they will be going through, the legal process believe it must be adversarial. It does not. There is a simpler and cost effective way to resolve your dispute. Why not give mediation a try? You really have nothing to lose.
There are many attorneys who are opposed to mediation. I am not exactly sure why but I suspect it might have to do with the fact that attorneys are trained to be more adversarial rather than to negotiate. However, most cases that go through the legal system settle. Only a small portion of cases goes to trial, as it should be in the family, housing and civil cases.
In Probate and Family court most cases are required to do some form of settlement negotiations. In Housing court, you are required to go to mediation. In Small Claims court, everyone is encouraged to select mediation as a viable option before your case is heard by a decision maker (judge or clerk magistrate). In District court and Superior court (civil cases) you can request mediation to attempt to settle your case.
There are government funded programs where you can go to mediate your case. If you want to use these government funded programs you will need a referral from the court where you case is filed.
You can always contact a private attorney, like myself, who does private mediations as well. Generally, the cost of mediation is split evenly between the disputing parties. However, if the parties have made other arrangements then a mediation will not get involved in how payment is made, unless that is a dispute within the mediation itself.
I think that anyone who want to use mediation to resolve their dispute should verify the cost of the services in advance. Most attorneys will charge a fee for the mediation session, usually at a specified hourly rate. In addition, there is usually a flat rate fee to draft the documents needed upon settlement of the case to be filed with the court. I have noticed that most mediators charge more than their normal hourly rate for mediations. I do not subscribe to this and my regular hourly rate as an attorney is the same rate I charge for mediation services.
Depending on the complexity of the cases, the documents that needs to be produced for settlement/negotiation, and issues in dispute the mediation may take multiple days. Some mediations can be completed within an hour, while other take four to six hours. You can always obtain an attorney’s position on the settlement before submitting it to the court for approval.
The benefits of mediation:
- To not take up time in court for issues that can be resolved outside of court. You can mediate a case before anything is ever filed in court;
- To be able to represent your settlement/case in court within few minutes, rather than siting in court all day waiting for your case to be called (where a decision may not even be rendered);
- You split the cost of a qualified attorney, rather than each party paying your own attorney fees;
- You get an agreement that both parties can “live with” and are not decided by the judge;
- If a resolution is not reached, you may be closer to resolving issues, have some issues (if not all resolved) and you can understand the other parties position.