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Monday, June 22, 2015

Confessions of a Litigator - I Like Mediation

I have a confession to make. Even though I litigate on behalf of my clients, and (so I am told) I'm successful at it, I don't like to fight. I would rather resolve my client's problems without resort to litigation if I can do so while still protecting their interests.  In New Jersey, and in many other states, litigants are required to mediate early in the litigation process. And this is a good thing.

Mediation is one form of alternative dispute resolution (ADR) that allows parties to seek a remedy for their conflict without a court trial. Parties work with a mediator, who is a neutral third party. Usually, mediators have received some training in negotiation or their professional background provides that practical experience.

Unlike a judge, a mediator does not decide who wins; rather, a mediator facilitates communication between the parties and helps identify issues and solutions. The goal is for parties to reach an acceptable agreement.

Mediation can be an appealing option because it is less adversarial. This might be important when the relationship between the parties has to continue in the future, such as between a divorcing couple with children or between business partners. The process is also less formal than court proceedings. Mediation often costs less than litigation, which is another benefit.

Mediation generally takes much less time than a traditional lawsuit. Litigation can drag on for years, but mediation can typically be completed within a few months. Court systems are embracing mediation and other forms of ADR in an effort to clear their clogged dockets. There are some programs that are voluntary, but in some jurisdictions, pursuing ADR is a mandatory step before a lawsuit can proceed.

Mediation can be used in a variety of cases, and it is sometimes required by a contract between the parties. Mediators can be found through referrals from courts or bar associations, and there are companies that specifically provide ADR services. Ideally, a mediator will have some training or background in the area of law related to your dispute.

Mediation is often a successful way to reach a settlement. If parties fail to resolve their conflict, information learned during mediation might be protected as confidential under state law. Settlement offers made during mediation are not admissible if mediation fails and the parties proceed to litigation.

Is mediation right for you and your situation? Your attorney is the one to answer that question but as for me, I always present it as an option to my clients.


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