How Do Cases Get to Mediation?
Disputes come to mediation in several different ways. Most disputes are mediated voluntarily, after both sides agree to give it a try. However, some disputes must be mediated, regardless of what the parties want.
If you are required to mediate by order of a judge, by state law, or by the terms of a contract, you won’t have any say in the matter.1. Voluntary Mediation
Most cases come to mediation when the people involved in a dispute or a lawsuit agree to bring in a mediator to help them resolve it. Usually, one party decides mediation might be a good idea and suggests it to the other or contacts a mediation service, which in turn contacts the other side to propose mediation. Or, an employer, trade group, or other organization might establish a voluntary mediation program that it promotes to employees or members.
2. Mandatory Mediation
In mandatory mediation, the parties are required—by contract, court order, or law—to attend at least one mediation session. However, only the process is mandatory, not the resolution. Although the parties have to attend the session, they don’t have to agree to anything.
There are a couple of different types of mandatory, or required, mediation. In an effort to cut the flood of lawsuits and show people the benefits of mediation, many states have passed laws that require you to try mediation before you can move your lawsuit forward. Courts in some states routinely order small claims actions or regular civil claims for relatively small amounts of money to mediation. In California and other states, courts may order divorcing parents to mediate issues of child custody and visitation.
Contracts are another source of mandatory mediation. With increasing frequency, mandatory mediation clauses are contained in contracts people sign with their employers, banks, colleges, and even gyms. If you have signed one of these contracts, you will have to at least try to mediate any dispute you have with the other party before taking it to court or arbitration.
Some of these contractual provisions require the parties to use a particular mediation service; more commonly, the parties are free to choose a mediator if and when a dispute arises.0Yo∪ may be contractually obligated to mediate—even ifyou never signed a
contract. Some companies impose mediation (usually followed by
arbitration) on their customers as a condition of doing business, just as employers sometimes require mediation of their workers as a condition of employment. In these situations, the customer or employee may never sign a contract that explicitly requires mediation. Instead, the requirement appears in the fine print enclosed with a credit application, in an employee handbook, or on the company’s website. These provisions often state that doing business with or agreeing to work for the company constitutes an agreement to resolve disputes through mediation and/or arbitration rather than the court system.
3. Mediators and Mediation Services
There are lots of different mediators and mediation services out there. Which one ultimately mediates your dispute will depend on how your case gets to mediation and what you and the other party are seeking in a mediator.
Here is some information on the most common types of mediators and mediation services (for more information on choosing a mediator, see Chapter 3):
• Community mediation centers: These nonprofit groups offer free or lowcost mediation services to members of their local communities. They offer a very efficient and cost-effective means of resolving relatively minor disputes (such as neighborhood disagreements and consumer claims). Some cases are referred to community mediation centers by local courts; others are brought directly by the parties.
• Private dispute resolution companies: These firms mediate all kinds of civil disputes, from contract and business issues to wrongful termination and personal injury claims. They provide not only mediation services but also help with paperwork, scheduling the mediation, and getting the other party to agree to mediate.
Because they offer these additional services, their fees tend to be fairly high (see “Mediation Costs,” below).• Independent mediators in private practice: These solo practitioners mediate a wide variety of disputes, depending on the mediator’s field of expertise. For example, you should be able to find an independent mediator who specializes in employment disputes or divorce mediation.
• Court-connected mediation programs: If a court requires you to give mediation a try, a mediator may be assigned to you or the court may give you a list of mediators to choose from. As long as you use one of the court-approved mediators, the court will pick up the tab for at least a couple of hours of mediation. Some courts give you the option of selecting your own mediator, but you will probably have to pay the mediator’s fee.
MEDIATION COSTS
The cost of mediating varies greatly depending on the type of case and the mediator. In nearly all cases, however, mediating is far less expensive than going to court. Here is a quick overview of what you can expect to pay:
• Nonprofit community mediation centers: These groups offer mediation services free or for a nominal charge. For a one-day mediation of a neighborhood dispute, for example, you might expect to pay a $20 administrative fee (which the center might waive if you can't afford it).
• Private dispute resolution companies: These firms usually charge a set administrative fee plus an hourly rate for the mediator's time. Fees vary somewhat with location: companies in New York, Los Angeles, and other major cities may charge a $500 administrative fee per party plus $200 per hour per party. In medium-sized cities and small towns, expect fees to be reduced by about half. For a half-day mediation of a personal injury dispute, for example, you might have to pay $600 in total fees. For a complicated, three-day mediation between two large businesses, the parties might have to pony up $8,000 each.
• Private mediators: Most private mediators charge by the hour (there's no administrative fee). Divorce and family mediators, who specialize in divorce cases and other family-related problems (such as disputes between parents and children, siblings, and extended family members), might charge anywhere from $60 up to $300 per hour, with a rate of $100 being typical. The higher rates apply in the larger cities. For a couple that owns substantial property and has minor children, the mediation might consist of six two-hour sessions over the course of a couple of months, for a total fee of $1,200. (The mediator would charge an additional fee to write up the agreement.) Other private mediators might charge significantly more, depending on their area of expertise. For example, a mediator who works solely on disputes between employees and employers might charge up to $400 or more per hour, particularly in large metropolitan areas.
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