Mediation FAQ

In most cases, the parties must agree on a mediator before the process can proceed. A judge in a lawsuit may appoint a mediator, but the parties still have a certain amount of say over the matter. It is also customary for all of the involved parties to split the cost of the mediator equally.

In most mediation hearings, the mediator will introduce him or herself and make some opening comments about the rules and goals of mediation. Each side is given the opportunity to describe the dispute as he or she sees it without interruption from the other side or separately. Depending on the mediator and the parties, the mediator may then start a mutual discussion with both of the parties present or may engage each party privately, then going back and forth to try and resolve each issue. After discussing the issues with the parties, a mediator may bring both parties together to jointly negotiate a solution or, may continue to work individually with each side separately. 

If the mediation is successful, then the mediator will usually want to memorialize the agreement in writing. If the negotiation was not successful, the mediator will typically summarize the issues the parties did agree on, and advise them of their rights going forward. 

Mediation does not require a lawyer. However, you may want to hire a lawyer as a consultant to offer advice during the mediation or hire one to represent you and who is familiar with the process and mediation advocacy. A lawyer will also be able to advise with regard to the consequences of the mediation and any settlement that might be reached. 

Even if your case can be mediated, you should always question whether it is the best option given your goals and circumstances. You may not want to mediate a case where: 

You strongly feel that the other party should have to admit liability, fault or guilt. The mediation will typically not involve any such admissions and most often requires some form of mutual compromise. 

You want to send a “message” or establish a legal precedent. Results from mediation are not binding on other parties or public, so even if you mediate a successful result it will have no bearing on future cases or precedential value. 

You believe a jury would be extremely sympathetic and award you a big verdict. Mediation is a compromise, and as such, it tends to exclude extremely large settlements that juries can sometimes award. 

Mediated settlements are legally binding if reduced to a writing that reflects the parties intent to be bound and sets forth the material terms of their agreement. Unfortunately, even good-faith negotiation and a mutual desire to reach a settlement can lead to an impasse and the parties can be left with no deal in spite of their best efforts. 

Mediation is far less expensive in terms of both time and money than litigation. Mediated disputes are often resolved in a matter of days. Also, a mediated settlement is usually confidential and strives to address the concerns of everyone involved. Mediation can also shield the parties involved from some extra dangers of civil litigation, like punitive damages. 

Mediation is a cost-effective alternative to litigation. It may also be a good option if you are concerned about maintaining an important relationship with the person or entity on the other side. 

Typically, only civil cases can be mediated. Typical civil cases that are mediated include employment disputes, business disputes, landlord-tenant disputes, small claims disputes, divorces, child custody disputes, contract disputes and many others. 

In most cases mediation is voluntary however in some situations mediation may be required as in the case of a contract the parties may have agreed to. However, neither side can be bound or forced to accept any proposals unless he or she explicitly agrees to the proposed settlement. 

Mediation can take one hour, many hours, one session or several sessions. The length of time may depend on the number of issues to mediate, how far apart the parties are, how willing the parties are to trying to work things out, the emotions of a party, how well you communicate your goals and issues, and many other factors. No two mediations are exactly the same. Many types of cases can be resolved in one session and in some cases in as little as two hours. Certain cases can take a full day or more.

You and your attorney should be prepared to discuss all relevant issues in your case. Before the mediation session, you and your attorney should discuss the mediation process and understand that it is confidential and non-binding. You should be prepared to state your position and to listen carefully to the other side as communicated directly, or through the mediator. Persuasive and forceful communication is permitted, but civility and mutual respect are vital. Hostile or argumentative tactics are likely to cause parties to become entrenched in their position and will be counterproductive to the process. Some mediators also require pre-mediation briefs and/or pre-mediation calls with counsel to help prepare themselves and the parties for the hearing.

Except as otherwise provided by the California Evidence Code or California law, all communications, negotiations, or settlement discussions in the course of a mediation or mediation consultation are confidential and are not admissible or subject to discovery in any pending or subsequent litigation.

The mediator is a neutral intermediary whose role is to help the participants reach a settlement through a facilitated settlement dialogue. The mediator will not impose or force a settlement on either side but will assist the parties to understand the benefits of settlement options and or the risks of not reaching a settlement. Generally, the mediator does not communicate with the court or any nonparty except to file court required documents, to advise the court the case settled or did not settle or to notify the court that the mediation did not go forward.

All parties, their counsel and persons with full settlement authority typically are expected to personally attend the mediation, unless excused by the court or mediator for good cause. If consent to settle the case is required for any reason, the party with the consent authority must also be personally present at the mediation.

Mediators charge based on their experience, demand for their services and on the anticipated length of the mediation. When arranged through the San Diego Superior Court, a discounted rate may apply to the first two hours of the Mediator’s time then the remaining time will be billed at the mediator’s regular hourly rates. Rates for mediator can range from $250 per hour to over $6,000 – $8,000 per day. The mediator’s charges are typically split equally between the parties unless other agreements are reached in advance.

One can usually find an experienced San Diego mediator on the court’s Civil Mediation Panel. Many private mediation and arbitration organizations now exist and offer mediation services to the public. Many individual mediators also have websites or advertise in various publications and online. Choose a mediator based on their experience or based on a referral from someone who knows or has used that mediator.

Mediation may not be effective if one of the parties is unwilling to cooperate or compromise. Mediation also may not be effective if one of the parties has a significant advantage in power over the other or is not will to participate in good faith. Mediation may not be a good choice if the parties have a history of abuse or victimization or are closed-minded to the process or dealing with one another.

Mediation may be particularly useful when parties have a relationship they want to preserve. So, when family members, neighbors, or business partners have a dispute, mediation may be the best ADR process to use. Mediation is also effective when emotions are getting in the way of resolution. An effective mediator will listen to each party and help them communicate with each other in a less adversarial and constructive manner.

Mediation is a confidential, non-binding process in which a trained mediator acts as a neutral person who facilitates communication between disputants and assists parties in reaching a mutually acceptable resolution of all or part of their dispute. Mediation is an informal, voluntary and confidential way to resolve disagreements without giving the decision-making power to someone else, like a judge. The mediator is not the decision-maker and does not resolve the dispute — the parties do. A mediator is often able to more fully explore the parties’ underlying interests, needs and priorities. A mediator will help you quickly figure out the important issues in the disagreement, explain and understand each other’s needs, clear up misunderstandings, explore creative solutions and help the parties to reach acceptable agreements. The mediator does not tell the parties what to do or make a judgment about who’s right or wrong. Decision-making stays with you. People choose mediation for many reasons. Mediation may be less confrontational than dealing with the issues in litigation or in front of a judge. Mediation can save time and money since you define the issues.