ALTERNATIVE DISPUTE RESOLUTION (ADR) PART 1 OF 3: MEDIATIONS

Jun 6

Overview of Avenues for Dispute Resolution: Part 1 – Mediations

Do I have to mediate? What impact does the mediator’s decision have on my case? Can I go to trial and then arbitrate my dispute? Should I file suit in court or arbitration? Why should I engage in a settlement conference if my prior mediation was unsuccessful? Must I attend an Early Neutral Evaluation conference? These are a sampling of questions we often hear from clients or prospective clients when faced with the specter of Alternative Dispute Resolution (“ADR”). Mediation, arbitration, settlement conference – these terms can be confusing but it is important to know the distinctions between these various avenues for dispute resolution as your decision on which way you would like to proceed could have a significant impact on your case and ultimate results.

The first of this three-part series will provide an overview of mediations and when a mediation may be appropriate for your case.

In a mediation, a neutral individual – the mediator – assists the parties in communicating their interests to one another. The mediator’s goal is to facilitate a resolution between the parties through questions and often an expression of opinions about the merits of the dispute or how a judge or jury may view the particulars of the case. Importantly, a mediator is not a judge. The mediator cannot impose a settlement on a party or make any “findings” as to the parties’ case. The parties may walk away from the process at any time if unable to reach a resolution.

Generally, mediations are confidential meaning that anything said or admitted in the course of mediation or any writing prepared for the purpose of mediation are inadmissible and protected from discovery. This also includes communications, negotiations, or settlement discussions by and between parties in the course of mediation.

Mediation comes in one of two forms: voluntary mediation or mandatory mediation. Most mediations are voluntary as parties may choose private mediation before resorting to the litigation process or even after litigation has been initiated. Some mediations, however, are mandatory and the parties must engage in a mediation before resorting to litigation. For example, depending on the nature of the dispute, it is a statutory requirement that a dispute between a homeowners’ association and its member be mediated before litigation can be initiated. Mediation can also be a contractual requirement. Real Estate Purchase and Sale Agreements often include a provision requiring the parties to mediate before submitting the dispute to the court or arbitration. The failure to mediate when mandatory can have dire consequences including loss of ability to collect attorney’s fees and costs should you prevail, requirement that you pay the other party’s attorney’s fees and costs should you refuse to mediate, or even a dismissal of your case.

As with any form of ADR, there are advantages and disadvantages to mediating your dispute. Advantages of mediation include it is often lest costly then arbitration or trial, flexibility in how mediations are conducted to foster and facilitate an atmosphere of cooperation between the parties, parties’ are able to control the mediation process more so than a court or arbitration proceeding, and the ability to craft and fashion creative solutions that may otherwise be outside the scope of remedies available in litigation. However, there are disadvantages to mediation as well. Private mediations require the participants to pay out of pocket, which includes a mediator’s hourly fee and administrative costs. Mediations are only as effective as the parties’ willingness to participate. If there is a party who is “going through the motions” and is mediating simply to check a box, a mediation will lose its effectiveness. Mediations are often informal and cannot establish legal precedent, so it may not be the best option for cases of first impression or important issues requiring court decisions.

Mediations can be an effective tool for parties to attempt to resolve their dispute early on before fees, costs, and the emotions of litigation really ramp up. It is extremely important that you contact an attorney to assess at the outset whether statute or contract compel you to mediate and that you do so as soon as practicable.

You have finished reading Part 1 of a 3 Part series on ADR. Read our Part 2: Arbitrations and Read our Part 3: ENEs and Settlement Conferences to learn more.

The information provided above does not, and is not intended to, constitute legal advice. All information, content, and materials are for general informational purposes only and do not create an attorney-client relationship. The experienced and knowledgeable attorneys at Blake Law Firm are available to answer questions on alternative dispute resolution and help you navigate any other real property issues.

Alternative Dispute ResolutionMediation

Andrew Hall

Attorney Andrew Hall has over 10 years of experience handling complex real estate, business, and litigation matters throughout California and Washington. Andrew has vast experience with a wide range of clients – from residential to commercial property owners, landlords to tenants, real estate agents to brokers, title to escrow companies, hard money lenders to banking institutions. Andrew has handled cases ranging from administrative disputes, to unlawful detainers, to bankruptcies, to litigation, leaving his clients with the confidence that he can handle all of their needs from soup to nuts.

Andrew is committed to exploring efficient and cost-effective resolutions for his clients, whether that be through informal conversations with parties or attorneys, mediations, or settlement conferences. However, when litigation is inevitable, Andrew has counseled his clients through all stages of a dispute, including arbitrations, court trials, jury trials, and appeals at both the State and Federal Court levels.

Andrew resides in Carlsbad with his wife Lauren, son Nolan (7), and daughter Madeline (5). Andrew is actively involved with the Magdalena Ecke Family YMCA, where he can often be found on the weekends cheering Madeline on in any variety of youth sports or with Nolan participating in the Y’s Adventure Guides Program. Andrew enjoys playing golf, tennis, softball and good barbeque.

Andrew is committed to identifying his client’s goals and employing his big firm experience with small firm attention to help his clients achieve those goals.