Mediation is an alternative dispute resolution process involving a neutral third-party, who attempts to resolve disputes by seeking the parties’ agreement to a negotiated solution. Mediation is not litigation or arbitration. In litigation and arbitration, a judge or an arbitrator resolves a dispute by making a binding decision affecting the parties to the dispute. In contrast, in mediation, the parties voluntarily engage in an attempt to resolve their dispute in a mutually agreeable manner with the assistance of the mediator. This can lead to more creative solutions to legal problems.
A primary goal of mediation is to try and get parties actively involved in the formulation of a fair resolution they are happy with, or can at least live with. Often, in this way, mediation can help parties feel “heard” and assist them with the emotional healing process by giving them more active control over the resolution of their disputes.
Mediation is sometimes mandated by courts in certain types of cases like small claims, divorce, or child custody proceedings prior to trial. Here is information from the Oregon Judicial Department about Oregon court mediation: http://www.courts.oregon.gov/programs/family/marriage/Pages/Mediation.aspx
Mediation can also be engaged in voluntarily by parties pre or post litigation. In these situations, mediation can help minimize the time, expense, uncertainty, and costs associated with litigation. This can be especially effective in helping resolve complex matters and matters where a creative and/or flexible resolution framework might be more favorable than engaging in a litigious effort with potentially limited legal remedies.
Keep in mind, mediators are not party advocates regardless of their professional qualifications and whether or not they are lawyers. Consequently, you should fully understand your legal rights and risks through consultation and/or engagement with your own attorney prior to, and during, mediation. In Oregon, there are statutory protections regarding the confidentiality of mediation communications that are very important to also be aware of and abide by prior to mediating, especially if your legal matter doesn’t settle in mediation.
In addition, you should consider the professional qualifications, training, and background of any mediator prior to agreeing to mediate to ensure he/she is qualified to assist in resolving your disputes. You can learn more about mediation and mediators by checking out the Oregon Mediation Association’s (OMA) website: http://www.ormediation.org/ and mediate.com here: https://www.mediate.com/Oregon/
We hope this information is helpful in providing you with an additional perspective regarding how you might attempt to resolve your legal disputes through mediation.
This blog was written by attorney James Underwood, who is a licensed attorney in Oregon and Washington. This blog should not be construed as legal advice for any particular person or situation. Please consult with legal counsel regarding any personal legal situation.