Litigation Quick Take: Mediation

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Q: The plaintiff has asked to mediate their claim. What is mediation and is it required?

A: Mediation is an informal meeting between parties to try and settle a case, before or during litigation. For most civil cases, mediation is not mandatory (unless required by statute or contract).

If you do mediate a case, an impartial person called a mediator will conduct the proceedings. The mediator is generally an attorney knowledgeable in the area of law at issue, but he/she does not give legal advice. The mediator’s role is to facilitate settlement discussions between the parties. 

Generally, mediations take place at one of the attorney’s offices or the mediator’s office. The opposing parties, with their respective attorneys, will be in separate rooms. The mediator will go between the rooms, communicating settlement demands and offers, as well as relevant information shared by the parties that will help facilitate a settlement. 

If a solution is reached, the mediator usually drafts a mediation agreement noting specific terms the parties agreed to during mediation. The parties’ attorneys will then later draft settlement documents incorporating these terms. While some of the exact settlement language may be negotiated after mediation, the mediation agreement is enforceable.  

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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