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Webster’s / defines the word “mediate” as “1. To settle or resolve (differences) by acting as an intermediary between two or more opposing parties. 2. To bring about (e.g., a settlement) by action as an intermediary . . . vi. 1. To intervene between two or more disputing parties in order to effect a settlement, agreement, or compromise.” Mediation, then, is the act of negotiating the settlement of a dispute through the use of an intermediary.
In recent years, due to the enormous backlog of civil cases pending in our judicial system (particularly in Riverside County), attorneys and their client-litigants have turned to alternative means of settling their differences, not only to obtain a faster resolution of their dispute, but to take more control over the resolution process. One means for doing so has been through the use of private mediators and mediation services.
In California, almost 95% of all active civil cases settle before trial. In cases where no alternative dispute resolution process is used by litigants, they can, and frequently do, spend tens of thousands of dollars paying for the services of attorneys, process servers, copy services, and court reporters. Mediation is one method for litigants to attempt to resolve their differences before spending huge sums of money during the litigation process. In fact, in Riverside County, the court has announced that any lawsuit involving claims of $50,000.00 or less will be sent to mediation prior to trial and has set up the Civil Mediation Panel whose members serve as court assigned mediators.
Through the use of mediation, the disputing parties agree that they will attempt to resolve their differences using an independent, neutral mediator. The process provides the parties with the ability to choose a mutually-acceptable mediator (instead of being assigned a judge) with whom the parties can interact to settle their differences. Because the process is voluntary, parties can leave the process at any time, for any reason, or for no reason at all. Moreover, the parties are in complete control of each and every provision of any mediated agreement and, unlike in the courtroom, no particular outcome can be imposed on any party.
Mediation also provides the parties confidentiality and privacy. Once a lawsuit is filed, most, if not all, of the information relating to that lawsuit becomes public record, meaning anyone that wants information about a party or their claims in a lawsuit can be view that information, at the courthouse or on-line by visiting the court's web site, by anyone having the desire to know. With Mediation, the parties’ dispute is kept completely private and confidential. In California, any information provided by the parties to a mediator during the mediation process must be kept confidential, and no mediator can be forced to testify in court about a dispute over which the mediator has presided.
Finally, in many instances, mediation is required prior to litigation being instituted. For instance, the standard California Association of Realtors’ form “Purchase and Sale Agreement and Receipt for Deposit,” requires the parties to engage in mediation prior to filing a lawsuit. The sanction imposed by the agreement for failing to use the mediation process is the loss of the right to seek attorneys’ fees otherwise available under the contract.
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